JUDGMENT Asok Potsangbam, J. 1. Heard Mr. A. Mohendro, Learned Counsel appearing on behalf of the petitioners. Also heard Mr. N. Koteshwar, learned Advocate General, Manipur, appearing on behalf the respondent Nos. 1, 2, 3 and 4 and Mr. I. Lalitkumar Singh, Learned Senior Counsel, appearing on behalf of the respondent No. 5. None appears on behalf of the respondent Nos. 6 to 45 despite due service of notice. 2. It is seen from the order dated 17.3.2008 that service upon the respondent Nos. 6, 7, 8, 9, 11, 14, 15, 18, 19, 20, 21, 22, 23, 25, 26, 28, 29, 31, 32, 35, 36, 37, 38, 39, 40, 41, 42, 43 and 45 were duly served and service upon respondent Nos. 10, 12, 13, 16, 17, 24, 27, 30, 33, 34 and 44 were effected by way of substituted service. Four copies of local news papers, both Vernacular and English in which substituted service was published, have been placed on record. 3. In this writ petition, the petitioners have questioned the powers and competency of the DPC associated with the Manipur Public Service Commission, to upgrade and downgrade the grading of ACRs of candidates already recorded by the competent authorities by following the procedure prescribed for the same. The procedure adopted by the Departmental Promotion Committee (DPC) while making selection and recommendation for appointment to MPS Grade-II under MPS Service 1965 and the order dated 1.3.2007 giving promotion to 40 officers to MPS Grade-II, are also sought to be quashed in this writ petition by issuing a Writ of Certiorari. 4. The appointment and promotion to the post of MPS Grade-II is governed by Manipur Police Service Rules, 1965 ('the Rules'), as amended from time to time. Rule 4 of the Rules provides as to how the strength of the service is to be determined. The method of Recruitment to the post of MPS Grade-II in the Police Department is provided in Rule 5 and Rule 5A, 5B and 5C provide as to how the DPC shall consider CRs of the persons included in the consideration list. The aforesaid Rule 5 to 5C are reproduced herein below: 5. The method of Recruitment to the post of MPS Grade-II in the Police Department is provided in Rule 5 and Rule 5A, 5B and 5C provide as to how the DPC shall consider CRs of the persons included in the consideration list. The aforesaid Rule 5 to 5C are reproduced herein below: 5. Method of Recruitment - (1) Save as provided in Rule 17, appointment to the service shall be made by the following methods namely: (a) 50 percent of the substantive vacancies which occur from time to time in the authorised permanent strength of the Service shall be filled by direct recruitment in the manner specified in Part IV of these rules; and (b) the remaining 50 percent of such substantive vacancies shall be filled by selection in the manner specified in Part V. of these rules from amongst the officers, who are substantively borne on the cadre of Inspectors of Police, Inspectors of Police (Legal) and Subedar/Subedar Majors of Manipur Rifles employed under the State of Manipur: Provided that nothing in this rule shall preclude the Government from holding a vacancy in abeyance, or filling it on an officiating basis in accordance with the provisions in Part VIII of these rules: Provided further that in the case of a person, who had been appointed to a post which is subsequently declared as duty post, he shall be deemed to have been appointed to the service from the date of encadrement of the post in the M.P.S. Schedule. (2) If the exigencies of service so require, the Government may, in consultation with Commission vary the percentage of posts to be filled by each method specified in Sub-rule (1). 5A. The DPC shall consider the CRs of the persons included in the consideration list and award marks, on the basis of the remarks in the CR. The scales shall be as follows: In awarding the marks, the overall tenor of the remarks of various officers shall consider and not merely the concluding remarks. Due regards shall be paid to nature of the job held by the officer. 5B. Where an officer has received either a commendation, award or exceptional performance beyond the call of duty is recorded during the period under review may be awarded appropriate marks out of 5 marks in addition. 5C. Due regards shall be paid to nature of the job held by the officer. 5B. Where an officer has received either a commendation, award or exceptional performance beyond the call of duty is recorded during the period under review may be awarded appropriate marks out of 5 marks in addition. 5C. On the basis of marks awarded, a merit list of the officers shall be prepared and promotions recommended on the basis of such merit-list. 5. Rule 1.3 provides the constitution of Selection Committee and Rule 14 stipulates the conditions of eligibility and procedure for selection. According to Rule 14, the officers specified under Clause (b) of Sub-rule (1) of Rule 5, on completion of two years regular service, are eligible for consideration of promotion and the selection for inclusion in the select list shall be based on merit and suitability in all respects. In other words, promotion to MPS Grade II is by way of selection on merit basis. The DPC or the Selection Committee constituted under the Service Rules, 1965, is to be guided by the O.M. dated 29.4.1999, issued by the Department of Personnel and Administrative Reforms, Government of Manipur, wherein it is laid down that each DPC, though competent to devise its own method and procedure for objective assessment of the suitability of candidates, should adhere to the guidelines given by the Government. The relevant portion of the guidelines are reproduced herein below: 5.3.1. Principles to be observed and preparation of panel. The list of candidates considered by the DPC and the overall grading assigned to each candidate, would form the basis for preparation of the panel for promotion be the DPC. The following principles should be observed in the preparation of the panel. (a)...Whenever promotions are made for induction to class-I posts or services from lower Groups and promotion within Class-I posts services carrying pay scale less than 3,700-5,000 (pre-revised), the benchmark would continue to be "Good". However, officers graded as "Outstanding" would rank en-bloc senior to those who are graded as "Very Good" and officers graded as "Very Good" would rank en-bloc senior to those who are graded as "Good" and place in the select panel accordingly up to the number of vacancies, officers with the same grading maintaining their inter-se-seniority in the feeder post. (b).... However, officers graded as "Outstanding" would rank en-bloc senior to those who are graded as "Very Good" and officers graded as "Very Good" would rank en-bloc senior to those who are graded as "Good" and place in the select panel accordingly up to the number of vacancies, officers with the same grading maintaining their inter-se-seniority in the feeder post. (b).... (c) Appointments from the panel shall be made in the order of names appearing in the panel for promotion. 6. In the aforesaid O.M., there is a chapter called as confidential report under Para 5.2.1. Relevant portion of Para 5.2.1. (a), (b) and (c) are reproduced hereinbelow: Confidential Reports 5.2.1. Confidential rolls are the, basic inputs on the basis of which assessment is to be made by each DPC. The evaluation of CRs should be fair, just and non-discriminatory. Hence - (a) The DPC should considers ACRs for equal No. of year in respect of all officers considered for promotion subject to (c) below. (b) The DPC should assess the suitability of the officers for promotion on the basis of their service record and with particular reference to the CRs for five preceding years (except in cases where R/Rs prescribed lesser qualifying service for promotion). However, in cases where the required qualifying service more than 5 years, the DPC should see the records with particulars reference to the CRs for the year equal to be required qualifying service (if more than one CRs has been written for a particular year, all the CRs for the relevant year shall be considered together as the CRs for one year). (c).... (d).... (e) The DPC should not be guided merely by overall grading, if any, that may be recorded in the CRs but should make its own assessment on the basis of the entries in the CRs, because it has been noticed that sometime overall grading in the CRs may be inconsistent with the grading under various parameter or attributes. Broadly speaking, the above are the rules and instructions applicable in the instant case. 7. Broadly speaking, the above are the rules and instructions applicable in the instant case. 7. The case of the petitioners, in brief, may be noticed as hereinunder: 7.1 On the recommendations of a duly constituted DPC in its meeting held on 27.3.1998, and with the approval of the MPSC the three petitioners along with 19 others were appointed as Inspector of Police vide an order of the Government of Manipur, issued under No 9/12(25)/86-H(Pt), dated 28.5.1998 (Annexure A/1 to the writ petition). In that petitioner No. 1 was placed at Serial No. 18, petitioner No. 2 at Serial No. 7 and petitioner No. 3 at Serial No. 1 and the respondent No. 8 at Serial No. 17. 7.2 The rewards and medals for outstanding and meritorious service earned by the petitioners during their service career are stated below: (a) Petitioner No. 1. (1) Manipur Chief Minister's Police Medal for Gallantry and Outstanding Devotion to Duty was awarded vide Notification dated 12.8.2000. (2) President Police Medal for Meritorious Service was awarded vide communication/letter dated 16.8.2003. (3) Various cash rewards. (b) Petitioner No. 2. (1) Awarded President Police Medal for Meritorious Service in the year 1999. (2) Various other cash rewards and other acknowledgement of good service from the superior officers. (c) Petitioner No. 3. (1) Contributed a lot in tackling insurgency and has earned excellent remarks in his service career. 8. The Department of Home, Government of Manipur, issued a combined seniority list of Inspectors of Police, Inspectors of Police (legal), Subedar Majors and Subedars of Manipur Police Department vide Notification under No. E/34/13/97/-PHQ(ADM)/11166, dated 27.12.2006 (Annexure A/8 to the writ petition). As per the combined seniority list, the petitioner Nos. 1, 2 and 3 are placed at Serial Nos. 78, 68 and 64 respectively whereas the name of the respondent No. 8 is placed at Serial No. 77. 9. It is stated by the petitioners that 41 vacant posts of MPS Grade-II were available for appointment on promotion and 2 out of the aforesaid 41 vacant posts, were the vacancies occurred in the year 2005-06 and the remaining 39 vacant posts came to exist in the year 2006-07. Some time in 2006 Government took a decision to fill up the aforesaid vacant posts and accordingly, necessary steps were taken up for the same. Some time in 2006 Government took a decision to fill up the aforesaid vacant posts and accordingly, necessary steps were taken up for the same. Pursuant to the aforesaid decision, a list containing 86 eligible officers including the petitioners, who were in the zone of consideration, was submitted by the Government to the Public Service Commission along with all necessary papers including the recorded ACRs for consideration of the DPC. On the basis of recommendation made by the DPC associated with Public Service Commission in its meeting held on 12.1.2007 and in exercise of powers conferred under Rule 5 of Manipur Police Service Rule 1965, 40 officers were appointed on promotion as MPS Grade-II, in order of merit, vide an order of the Government of Manipur under No. 3/40/2006(P)/JP dated 1.3.2007 (Annexure- A/12 to the writ petition). The name of the petitioners (three in number) were not recommended by the DPC for appointment on promotion to the post of MPS Grade-II, whereas the respondent No. 8 who was appointed as Inspector of Police along with the petitioners vide order dated 28.5.1998, was recommended and appointed on top of the list against the vacancies available for 2006-07. 10. Being aggrieved by the aforesaid order dated 1.3.2007 (Annexure A/12), this petition is filed, mainly, on the following grounds: (i) Though the rewards and medals earned by the petitioners in their service career, carry extra marks in addition to the grading of ACRs, in terms of the Rule 5(A)to Rule 5(C) of the Service Rules, 1965, the DPC had deliberately ignored the extra marks earned by and entitled to the petitioners while considering selection for appointment on promotion to the MPS Grade II. A specific plea was taken in the writ petition that the petitioner No. 3 had full knowledge that he got five Outstanding ACRs for the last five years immediately preceding the date of DPC meeting, i.e., 12.1.2007 but his ACRs graded, as outstanding were down-graded by the DPC without notice and without any power and authority. In case, the ACRs of the petitioner No. 3 was to be downgraded, it was incumbent upon the authority of the DPC to give an opportunity of hearing to the petitioner No. 3 as well as to the reviewing and accepting authorities, in terms of the law laid down by the Apex Court in a catena of cases. In case, the ACRs of the petitioner No. 3 was to be downgraded, it was incumbent upon the authority of the DPC to give an opportunity of hearing to the petitioner No. 3 as well as to the reviewing and accepting authorities, in terms of the law laid down by the Apex Court in a catena of cases. (ii) The petitioners also contended that while considering the case of respondent No. 8 who was placed at Sl. No. 77 of the combined seniority list, DPC chose to accept the "Outstanding" recorded in the ACR of respondent No. 8 without any modification or down-gradation. It was further contended that the DPC had adopted different yardsticks for different candidates and, therefore, a clear case of discrimination and arbitrariness was made out, attracting the provisions of Articles14 and 16 of the Constitution of India. (iii) It was also contended that the DPC had failed to consider the case of the petitioner No. 1 who had earned medals and rewards as well as excellent remarks in his service career. Similar plea was taken in favour of petitioner No. 2. (iv) Though the DPC was bound to adhere to the guidelines contained in OM dated 29.4.1999, the recommendation of the DPC for appointment of 40 Officers to MPS Grade II had been made in complete violation of the provisions of the aforesaid OM dated 29.4.1999 and as such, the recommendation and appointments, in question, are liable to be quashed. 11. Government respondent Nos. 1 to 4 filed an affidavit-in-opposition on 29.2.2009 wherein it was stated that the provisions of Rule 5A, 5B and 5C of the Manipur Police Services Rules, 1965 had already been deleted vide notification dated 6.2.2006. The above notification shows that same would come into force from the date of publication in Government Gazette but no copy of the Gazette notification has been placed before the court. Subsequently, it was ascertained that the aforesaid notification was published on 13.3.2006 in the extraordinary gazette of Manipur Government. Secondly, Government took the stand that the promotion to MPS Grade II has been made on the basis of merit of the candidates as assessed by the DPC and on the basis of the recommendation of the Public Service Commission. 12. Subsequently, it was ascertained that the aforesaid notification was published on 13.3.2006 in the extraordinary gazette of Manipur Government. Secondly, Government took the stand that the promotion to MPS Grade II has been made on the basis of merit of the candidates as assessed by the DPC and on the basis of the recommendation of the Public Service Commission. 12. In view of the categorical stand of the Government in their affidavit that the impugned promotion order was issued on the basis of the recommendation made by the Public Service Commission, thereby indicating that the Government had no role to play in the process for selection and recommendation and in absence of any affidavit from the respondent No. 5, Public Service Commission, vis-a-vis the assertion of the petitioners that their ACRs have been downgraded without giving them any opportunity of being heard, this Court felt it necessary to ascertain the correctness or otherwise of the alleged down-gradation of ACRs. Accordingly, the Government was directed to produce the relevant ACRs of the private respondents as well as of the three petitioners in sealed cover along with the relevant DPC proceeding. In compliance, the ACRs and the DPC proceeding, as directed, were produced. As prayed for, Learned Counsel for the petitioners as well as the learned Government Counsel were allowed to inspect the ACRs in the Office Room of the Deputy Registrar (Judicial), under his supervision. 13. The petitioners filed an additional affidavit on 12.6.2009, pointing out discrepancies which were claimed to have discovered and revealed while inspecting the ACRs, referred to above. The affidavit was accompanied by a chart where grading of ACRs of the private respondents as well as the petitioners were shown. The Chart prepared by the petitioners shall be referred hereinafter as Chart A. As per Chart A, 5 persons (3 selected and 2 non-selected) secured "Outstanding" in their ACR grading. In addition, 2 other selected candidates, one ST and another Gen., secured only "Good". The table of Chart-A with particulars is shown below: CHART A Sl. No. Name of the officers Respondent/ petitioner Grading Possible grading 2001-02 2002-03 2003-04 2004-05 2005-06 3 Shri M.Mubi Singh 8 (Res) OS OS OS OS& VG OS OS 11 Shri Thaimei Gaipuri Kabui 16 (Res) VG OS VG OS OS OS 34 Shri Sharma Sh. Jugeshore Sharma 39 (Res) .... No. Name of the officers Respondent/ petitioner Grading Possible grading 2001-02 2002-03 2003-04 2004-05 2005-06 3 Shri M.Mubi Singh 8 (Res) OS OS OS OS& VG OS OS 11 Shri Thaimei Gaipuri Kabui 16 (Res) VG OS VG OS OS OS 34 Shri Sharma Sh. Jugeshore Sharma 39 (Res) .... OS OS OS OS OS 1 Shri Lourembam Deben Singh 1 (Pet) VG OS VG=1 /2 OS= 1/2 OS VG OS 3 Shri Th.Nungshi Singh 3(Pet) OS OS OS VG VG OS 8 Shri C.Nehemiah Tangkhul (ST) 13 (Res) VG G VG G P G 16 Md. Tombi 21 (Res) VG G G G VG G NB. OS. (outstanding); VG (very good), G (good), P (poor). 14. Government filed an additional affidavit on 1.9.2009, explaining therein that in respect of two vacancies available for the year 2005-06, respondent Nos. 6 and 7 were recommended from amongst the eight candidates whose cases were considered by the DPC. The zone of consideration for two posts is eight. As the petitioners were not within the zone of consideration for the said two vacancies, it is not considered necessary to comment on the recommendation made against the vacancies for the year 2005-06. The challenge in this writ petition is in respect of the selection and recommendation made against the 39 vacancies available for the year 2006-07. In the aforesaid additional affidavit, a statement has been made by the Government that the case of respondent Nos. 13, Shri C.Nehemiah Tangkhul, was recommended by the DPC as his ACR was graded as "Very Good". But no explanation has been given as to how the case of Mohd. Tombi, respondent No. 21, whose ACR has been found to have been recorded as "Good" only, had been recommended by the DPC by overlooking the case of the candidates whose ACRs were graded as "Very Good" and "Outstanding". 15. As directed, respondent No. 5, produced the assessment chart of all the candidates prepared by the DPC in its meeting held on 12.1.2007 and on comparison, the assessment chart of the DPC did not tally with the Chart-A prepared by the petitioners after inspection of ACRs. Thus, in order to ascertain the truth and correct position of the matter, the Deputy Registrar (Judicial) was directed to examine and compare the ACR grading of the candidates recorded in the assessment charts, with that of the original ACRs. Thus, in order to ascertain the truth and correct position of the matter, the Deputy Registrar (Judicial) was directed to examine and compare the ACR grading of the candidates recorded in the assessment charts, with that of the original ACRs. The Deputy Registrar (Judicial) with the assistance of other officials of the registry, prepared a chart showing actual recording of the ACRs of the candidates whose cases were considered by the DPC on 12.1.2007. This chart which forms part of the records shall be hereinafter referred to as Chart B. Copies of the Chart B prepared by the Deputy Registrar (Judicial) were furnished to all the parties so that they could dispute/controvert the factual position recorded with regard to the relevant ACRs. But none of the parties filed any affidavit, disputing/controverting the factual finding recorded by the Deputy Registrar (Judicial). As per the assessment chart prepared by the Dy. Registrar (Judicial), the following five candidates secured overall grading of "Outstanding" in their ACRs and two others got only overall grading of 'Good." The particulars of the ACRs of the 5+2 candidates are shown below - CHART B Sl. No. Name of the officer Assessment years Possible grading on average 2000-2001 2001-2002 2002-2003 2003-2004 2004-2005 2005-2006 3. M. Mubi Singh - OS OS OS VG OS VG OS OS 11 Thalmei Gaipuril Kabui(ST) - VG OS VG OS OS OS 34 Sh. Jugeshore Sharma - No ACR OS OS OS OS OS 41 L. Deben Singh (Pet) - VG OS OS OS VG OS 43 Th. Nungshi Singh (Pet) - OS OS OS VG VG OS 8 C. Nehemiah Tkl.(ST) - VG G VG G P G 16 Md.Tombi VG G G G VG G NB. OS. (outstanding); VG (very good), G (good), P (poor). 16. An affidavit has been filed by the respondent No. 5, on 9.9.2009 wherein it was stated that, the assessment of the ACR merit of the Officers within the zone of consideration, for preparation of the select list was based on the assessment of grading of 3(three) or more equal grading out of 5(five) grading. For example, if there are 3(three), 4(four) or 5 (five) Outstanding" grading, the assessment of grading will be Outstanding". Similarly, if there are 3(three), 4(four) or 5(five) "Very Good" grading, the assessment grading will be very good and so on. For example, if there are 3(three), 4(four) or 5 (five) Outstanding" grading, the assessment of grading will be Outstanding". Similarly, if there are 3(three), 4(four) or 5(five) "Very Good" grading, the assessment grading will be very good and so on. Beyond this, nothing has been stated with regard to up-gradation or down-gradation of the ACRs. In the meantime, Mr. Lalitkumar Singh Learned Senior Counsel appearing for the MPSC, has categorically stated before the court that that in case where there are two or three recording of ACR in a particular year for a candidate, the best recorded grading shall be counted and this practice is invariably followed by the Public Service Commission while considering ACR of candidates. The chart prepared by the DPC showing the grading of the officers shall be referred hereinafter as Chart C. It may not be necessary to refer to the entries in the of ACRs of all the candidates as the controversy mainly centres around seven (7) candidates, five (5) selected and two unselected. The particulars of the ACRs recorded in respect of the seven (7) candidates are given below- CHART C Sl. No. Name of the Officer Date of regular apptt. in the grade Assessment year Grading 2001-2002 2002-2003 2003-2004 2004-2005 2005-2006 1 M. Mubi Singh 28.5.98 OS OS VG VG OS OS 2 Thamei Gaipuril Kubui 14.6.95 - VG VG/ OS VG OS VG 3 Sh. Jogeshore Sharma 25.7.95 NA OS VG VG OS VG 4 L. Deben Singh 28.5.98 VG VG VG OS VG VG 5 Th. Nungshi Singh 28.5.98 OS VG VG VG VG VG 6 C. Nehemiah Tkl.(ST) 14.6.95 VG G VG VG G VG 7 Md. Tombi 14.6.95 VG VG G G VG VG NB. OS (outstanding); VG (very good), G (good), P (poor). 17. When the case was taken up for hearing, it was felt that one vital aspect which would have a direct bearing on the adjudication of the issues raised in the case, was found not adequately addressed to both by the petitioners as well as by the respondents. OS (outstanding); VG (very good), G (good), P (poor). 17. When the case was taken up for hearing, it was felt that one vital aspect which would have a direct bearing on the adjudication of the issues raised in the case, was found not adequately addressed to both by the petitioners as well as by the respondents. Accordingly, the respondent No. 5 was directed on 20.11.2009, to submit an additional affidavit disclosing the source of power of the Public Service Commission and the DPC constituted in association with the MPSC, to downgrade or upgrade the ACRs of candidates already recorded by the competent authority or any other point which could be considered relevant by the respondent No. 5. Pursuant to the aforesaid direction, the respondent No. 5 filed an additional affidavit on 22.12.2009, claiming therein that the Office Memorandum, dated 29.4.1999 empowered the DPC to make its own assessment of ACRs of the Officers. Referring to Paragraph 5.2.1(e) of the Memorandum, it was asserted that the DPC was not be guided merely by the overall grading and should make its own assessment on the basis of the entries in the CRs. Further, the respondent No. 5 made the following statement in the affidavit "...the DPC has to make their own assessment of the ACRs of an officer for each year on the basis of the entries in the relevant column in the ACRs only. As a result of which, the ACR grading of an Officer assessed by such DPC in respect of a year may be lower or higher than the grading given by the Departmental Authority or it may be the same as was given by Departmental Authority. As such, the question of down-grading or upgrading of the ACRs of an Officer as alleged by the petitioners in the above referred writ petition does not arise as it is a consequence of the process of selection under the guidelines of the prescribed principles." 18. From the above narration of facts and on consideration of rival contentions advanced by the parties, the following issues emerge for consideration and determination of the court: 1. Whether there was, factually, any up-gradation or down-gradation of any ACR of any of the candidates by the DPC either on 1.2.2007 or any other date, while considering selection for appointment to MPS Grade-II or not? 2. Whether there was, factually, any up-gradation or down-gradation of any ACR of any of the candidates by the DPC either on 1.2.2007 or any other date, while considering selection for appointment to MPS Grade-II or not? 2. Whether the DPC and for that matter the Manipur Public Service Commission, have any power, authority and competency to upgrade or downgrade or alter the entries in the ACRs of the candidates already recorded by competent authorities, while considering selection for appointment to MPS Grade-II and that too without any notice? 3. Whether DPC is empowered by any of the provisions of the O.M. dated 29.4.1999, as claimed by the respondent No. 5, to re-assess/rewrite ACRs of the candidates, which may ultimately result into up-gradation or down-gradation of the ACRs of the candidate(s) or not? 4. If the issue No. 1 is answered in the affirmative and issue No. 2 in the negative, whether the entire selection process or only the selection process relating to 39 vacancies of 2006-07 would stand vitiated thereby rendering the recommendation and appointment made thereto, liable to be quashed or not? 5. Any other ancillary issue, pertinent to a just decision of the case. 19. With regard to the first issue, as formulated above, I have examined the ACRs of the candidates and more particularly, the ACRs of the 7 candidates mentioned in the above Chart A, Chart B and Chart C and the ACRs of the 7 candidates are marked as Exhibit Nos. 1, 2, 3, 4, 5, 6 and 7 for identification. On a careful perusal and examination of the ACRs of the seven candidates, the court finds the following grading recorded in their ACRs: Sl. No. Name of the Officer Assessment year Expected grading on average 2000-2001 2001-2002 2002-2003 2003-2004 2004-2005 2005-2006 1 M. Mubi Singh - OS OS OS VG OS VG OS OS 2 Thalmei Gaipuril Kubui(ST) - VG OS VG OS OS OS 3 Sh. Jogeshore Sharma - No ACR OS OS OS OS OS 4 L. Deben Singh(Pet) - VG OS OS OS VG OS 5 Th.Nungshi Singh(Pet) - OS OS OS VG VG OS 6 C. Nehemiah Tkl.(ST) - VG G VG G P G 7 Md. Tombi - VG G G G VG G NB. OS (outstanding); VG (very good), G (good), P (poor). 20. Tombi - VG G G G VG G NB. OS (outstanding); VG (very good), G (good), P (poor). 20. The finding of the court in respect of the ACRs of the 7(seven) candidates as quoted above, would clearly demonstrate that the Officers at Serial Nos. 1 to 5 of the above table, secured "Outstanding" grading in their ACRs and the Officers at Serial Nos. 6 and 7 secured the grading of "Good" only in their ACRs and the above finding tallies with the Chart A and Chart B, as discussed above. Though there is variance between the ACRs assessed by the DPC in respect of the Officers at Serial Nos. 1, 2 and 3 with that of the finding of the court, it appears that the Officers at Serial Nos. 1, 2 and 3 have no grievance as they had already been recommended and appointed as MPS Grade-II Officers. What is pertinent for a decision of the court is the grievance of the Officers at Serial Nos. 4 and 5 whose ACRs grading as "Outstanding" have been downgraded and as a consequence thereto, they have been denied promotion to higher post of MPS Grade-II. Their contentions with regard to the down-gradation of entries in their ACRs stand substantiated and are found factually correct. Secondly, it will be seen from the above table that ACRs of the Officers at Serial Nos. 6 and 7 have actually been graded by the competent authority as "Good" only as reflected in the above finding of the court but in the assessment chart prepared by the DPC, i.e., Chart C, their ACRs have been shown as assessed "Very Good". This is definitely a case of up-gradation of the ACRs of the Officers at Serial Nos. 6 and 7. From the above, it can be well deducted and concluded that there were down-gradation and up-gradation of ACRs, at least for the Officers as at serial Nos. 4, 5, 6 and 7 and as a result of up-gradation in the ACRs assessment of the Officers at Serial Nos. 6 and 7, they had been appointed as MPS Grade-II Officers. Thus, the issue No. 1 is answered in the manner indicated above. 21. Before the second issue is taken up, it may be necessary to consider the claim of the petitioners with regard to Rules 5A, 5B, 5C of the Rules, 1965. 6 and 7, they had been appointed as MPS Grade-II Officers. Thus, the issue No. 1 is answered in the manner indicated above. 21. Before the second issue is taken up, it may be necessary to consider the claim of the petitioners with regard to Rules 5A, 5B, 5C of the Rules, 1965. It must be clearly understood that any claim made on the basis of the aforesaid Rules 5A, 5B, 5C of the Rules, 1965, cannot be entertained as the aforesaid Rules had been deleted by notification dated 6.2.2006 which was later on published in the Extraordinary Gazette of the Manipur Government. It appears that the Rules 5A, 5B, 5C of the Rules, 1965 had been deleted before the vacancies for the year 2006-07 did occur and no argument have been advanced by the petitioners against the aforesaid proposition. 22. With regard to issue No. 2, Mr. A. Mohendro Singh, Learned Counsel appearing for the petitioners, submits that entries in the ACRs of an employee recorded by competent authorities by following the procedure prescribed for the same, is an asset to his service career and the employee shall definitely rely upon such grading earned by him, more particularly, at the time of consideration for promotion to a selection post. In this regard, the Learned Counsel relies upon the decision of the Apex Court S. Ramchandra Raju v. State of Orissa (1994) Suppl (3) SCC 424; State Bank of India v. Kashnath Kher AIR 1996 SC 1328 and State of U.P. v. Yamuna Shankar Misra and Anr. (1997) 4 SCC 7 . In the aforesaid two cases the Apex Court had discussed and laid down the importance and the purpose of ACR of an employee. 23. The Learned Counsel further submits that a DPC and for that matter, any other authority, cannot assume the power or authority, unless authorised expressedly by the relevant Rules, to re-write or alter the entry in the ACR of an employee, by downgrading the same without giving an opportunity of being heard to such employee. In support of the above proposition, the Learned Counsel for the petitioner relies upon the ratio laid down by the Apex Court in U.P. Jal Nigam and Ors. v. Probhat Chandra Jain and Ors. (1996) 2 SCC 363 ; Dev Dutta v. Union of India and Ors. (2008) 8 SCC 725 . In support of the above proposition, the Learned Counsel for the petitioner relies upon the ratio laid down by the Apex Court in U.P. Jal Nigam and Ors. v. Probhat Chandra Jain and Ors. (1996) 2 SCC 363 ; Dev Dutta v. Union of India and Ors. (2008) 8 SCC 725 . In Jal Nigam case (supra), the Apex Court held that the reasons for downgrading of entry in the ACR should be recorded and an employee must be informed of the change in the form of an advice. If an employee is not informed, the downgrading cannot be sustained. In Dev Dutta's case (supra), the Apex Court held that it is not the nomenclature of adverse entry or not, but it is the effect of the entry which diminishes and eliminates the chances of the employee to get selection for promotion to the post. An entry, be it "Good" or "Very Good", if it makes the employee ineligible for promotion and has an adverse effect in his chance for promotion, fairness and principle of natural justice demand that the employee must be communicated of the "Good" or "Very Good" entry in his ACR with a view to enable him to submit a representation for upgrading from "Good" to "Very Good" and from "Very Good" to "Outstanding", otherwise any selection made without giving such opportunity is arbitrary and liable to be struck down. The Apex Court has laid down the principles in this regard in the following words: Every entry in the ACR of a public servant must be communicated to him within a reasonable period, whether it is a poor, fair, average, good or very good entry. This is because 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 up-gradation. Hence non-communication of an entry is arbitrary. Hence non-communication of an entry is arbitrary. It is not only when there is a benchmark but in all cases that an entry (whether it is poor, fair, average, good or very good) must be communicated to a public servant, otherwise there is violation of principle of fairness, which is the soul of natural justice. Even an outstanding entry should be communicated since that would boost the morale of an employee and make him work harder. 24. Mr. Mohendro Singh, Learned Counsel for the petitioners has drawn the attention of the court to a case decided by a Division Bench of this Court and Heman Bihari Singh v. State of Manipur 2004 (1) GLT. It is submitted that in the aforesaid case, similar nature of issues came up for consideration by the Division Bench, i.e., down-gradation of ACR of the appellant therein from "Outstanding" to "Very Good" to keep at par with his seniors whose ACRs were graded as "Very Good" and thereby eliminating the chance of promotion of the appellant therein. The Division Bench held that in absence of any provision in the relevant Rules or OM, empowering the DPC to downgrade or alter the entries in the ACR already recorded by the competent authorities, such exercise of downgrading the ACR from "Outstanding'' to "Very Good" was without authority and competency. The Division Bench has also relied upon Para 126 of the Apex Court's decision Union of India v. Tulsiram Petal (1985) 3 SCC 398 , wherein the court held in the following words: ...There cannot be an exercise of a power unless such power exists in law. If such power does not exist in law, the purported exercise of it would be an exercise of a non-existent power and would be void. The exercise of a power is, therefore, always referable to the source of such power and must be considered in conjunction with it. 25. In view of the aforesaid proposition of law canvassed by the petitioners, the up-gradation of ACRs of the respondent Nos. The exercise of a power is, therefore, always referable to the source of such power and must be considered in conjunction with it. 25. In view of the aforesaid proposition of law canvassed by the petitioners, the up-gradation of ACRs of the respondent Nos. 13 and 21 and the down-gradation/alteration of the ACRs of the petitioners were without authority and competency and as such, the Learned Counsel for the petitioners submits that the procedure adopted by the DPC is unauthorised, arbitrary and illegal and, therefore, the recommendation of the DPC and the impugned order dated 1.3.2007 promoting the private respondents to MPS Grade-II, are liable to be quashed. 26. Mr. N. Koteshwar, learned Advocate General on behalf of the Government-respondents submits that the DPC is competent to make its own assessment, review and re-assess the remarks made by the Reporting Officer or the Reviewing Officer. This matter relates to screening for promotion to IAS and interpretation of the rules issued by the Commission. Questions raised in this case relate to bias, improper constitution of the Selection Committee, the power of the Selection Committee to arrive at a grading different from those given in the ACRs by the Reporting and Reviewing Officer. On facts, the case relied upon by the learned Advocate General, is clearly distinguishable from the instant case. In the aforesaid case, there was guidelines issued by the Commission as to how the ACRs should be assessed and how marking is to be made. These guidelines take care of proper scrutiny, and not only the Selection Committee but also the views of the State Government are obtained and ultimately the Commission, after scrutiny, prepared the final list which is sent to the Central Government for appointment. The Selection Committee is not powerless and this can be seen from the following observations of the Apex Court: After reviewing the candidates' performance, the Selection Committee can certainly make its own assessment. The guidelines which have been issued by the Commission also enable the Selection Committee to assess the remarks made by the reporting officer of the reviewing officer and after taking into consideration various factors like the meritorious work done or any punishment or adverse remarks made or subsequently expunged on representation can review the assessment about the candidates. Such review of the assessment is fully within the competence of the Selection Committee. Such review of the assessment is fully within the competence of the Selection Committee. Hence, it is always within the power of the Selection Committee to record its own assessment about the selection which may be at variance with that of the reporting officer or reviewing officer. In view of the above, the aforesaid case is no help to the respondents in countering the submissions of the petitioners. 27. The very issue as to whether the DPC can make re-assessment of the ACRs and down grade the entries ultimately leading to denial of promotion to higher post, has been discussed in Jatindranath Sharma v. State of Assam and Ors. 2002 (2) GLT 821. In this case, the court held that it is for the selection Committee not to accept the entry in the ACR of an employee on account of some patent errors of law or being visited with perversity or absurdity. But this does not mean that the selection committee has independent power to re-evaluate and rewrite the ACR of an incumbent. Such practice is certainly abhorrent to the letter and spirit of the service rules. Ultimately, the court held that downgrading of the ACRs by the selection Committee is without authority and illegal. Another bench of this Court followed the aforesaid proposition in a case S.D. Mazumdar v. State of Mizoram 2008 (2) GLT 844. Thus, the statement given by the respondent No. 5 in the affidavit as reproduced in Para 17 of this Judgment, is not acceptable for the simple reason that the DPC cannot clothe itself with any power and authority to reassess and rewrite the entry in the ACRs of a candidate, more so, in absence of any expressed authorisation by law in force. It is true, as laid down in para 5.2.1.(e) of the OM dated 29.4.1999, that DPC is not to be guided merely by the overall grading and should make its own assessment of entries in the ACR. This expression should not be understood as conferring power and, authority to the DPC to rewrite/alter entries in the ACRs of an employee resulting in down-gradation and up-gradation. If at all, an entry in the ACR is to be upgraded or downgraded, the same can be done only in the manner prescribed by law and that too by giving an opportunity of hearing to the incumbent concerned. If at all, an entry in the ACR is to be upgraded or downgraded, the same can be done only in the manner prescribed by law and that too by giving an opportunity of hearing to the incumbent concerned. True, it may be within the competence of the DPC to accept or not to accept the entries in the ACR of an employee. In case of not accepting entries in the ACR, the reasons must be recorded for such non-acceptance. Admittedly, the members of DPC in the instant case, had never worked as Officers, either as reporting or reviewing or accepting authority of the ACRs of the candidates involved in the case and as such, they had no occasion to evaluate the performance of the Officers involved in the case. The DPC proceeding which was placed before the court by the Learned Counsel appearing for the respondent No. 5, is carefully perused and nothing is found recorded therein to show as to how the outstanding entries in the ACR of the petitioner Nos. 1 and 3 were downgraded to "Very Good" nor is there any reason recorded for upgrading the entries from "Good" to "Very Good" in respect of the respondent Nos. 13 to 21. Thus, in the circumstances I hold that the procedure adopted by DPC is arbitrary, unauthorised and illegal. 28. A constitution Bench of the Apex Court in E.P. Royappa v. State of Tamilnadu and Anr. (1974) 4 SCC 3 held that where an act is arbitrary and if it affects any matter relating to public employment, such act is violative of Article 16. Articles 14 and 16 strikes at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles alike to all similarly situate and it must not be guided by any extraneous or irrelevant consideration because that would be denial of equality. Thus, the issue No. 2 is, answered in the negative. 29. In view of my finding on issue Nos. 1 and 2 above and on consideration of the matter in its entirety, this Court is of the considered view that the procedure adopted by the DPC in association with Public Service Commission and its recommendation for promotion to the post of MPS Grade II and the consequential impugned order dated 1.3.2007 are liable to be quashed. 1 and 2 above and on consideration of the matter in its entirety, this Court is of the considered view that the procedure adopted by the DPC in association with Public Service Commission and its recommendation for promotion to the post of MPS Grade II and the consequential impugned order dated 1.3.2007 are liable to be quashed. Considering the fact that private respondent Nos. 6 and 7 have been appointed against the vacancy for 2005 and 2006 for which the petitioners were not within the zone of consideration, I do not find any justification to disturb the recommendation and appointment of respondent of respondent Nos. 6 and 7. Accordingly, the appointment of the respondent Nos. 6 and 7 shall remain undisturbed. In respect of respondent Nos. 8 to 45, the selection was against the vacancies for the year 2006 and 2007 for which the petitioners were within the zone of consideration and the challenge in the case is directed against the selection process and recommendation with regard to 39 vacancies which occurred in the year for 2006 and 2007. Accordingly, selection process against the vacancy of 2006-07 and the recommendation thereto for promotion to MPS Grade II are quashed. Consequently, the appointment on promotion order dated 1.3.2007 for respondent Nos. 8 to 45 are also liable to be quashed. It is accordingly quashed. 30. The respondents are directed to hold a review DPC within a period of 3 months from today, keeping in view the observation and finding recorded above by the court. However, considering the peculiar facts and circumstances of the case, it is made clear that the private respondents Nos. 8 to 45 shall continue under the present arrangement till the review DPC, as ordered, is held within the time stipulated above. The writ petition stands allowed. No costs. Send down the records. Petition allowed