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2014 DIGILAW 604 (GAU)

Dhiraj Kumar v. Union of India

2014-06-06

TINLIANTHANG VAIPHEI

body2014
JUDGMENT Tinlianthang Vaiphei, J. 1. In this writ petition, the petitioner is seeking directions from this Court for expunging the adverse remarks, namely, "Average" gradings in his ACRs for the period 1.4.2005 to 31.3.2006, from 1.4.2006 to 3.7.2006 and from 1.4.2008 to 31.3.2009, which were recorded without any performance enhancing counselling or communication, and for promoting him to the post of Executive Engineer with effect from 5.10.2011 when his juniors were promoted to that post. The material facts of the case may be briefly noticed at the outset. The petitioner was appointed on 27.10.2004 as Assistant Executive Engineer under the Border Roads Development Board under the Ministry of Road Transport and Highways and is presently working under the Commandant, 42, Border Road Task Force (BRTF). In compliance with the new Office Memorandum dated 6.10.2010, the petitioner was vide the letter dated 12.10.2010 communicated his ACRs for the said periods in question whereupon he for the first time came to learn those adverse entries against him. He had never been informed of such entries earlier nor was he given an opportunity to improve his ACRs by way of giving advice/instructions or warnings. It is the contention of the petitioner that since the grading "Average" is considered to be adverse and below the benchmark for promotion to the next higher post of Executive Engineer, he should have been communicated to him by the respondents. Aggrieved by this, he filed the representation dated 28.7.2011 before the respondent authorities for reviewing his case by upgrading the impugned ACRs. However, the respondent authority by the letter dated 11.10.2011 (Annexure-12) rejected the representation. It is against this rejection that this writ petition is now filed by the petitioner for appropriate relief. 2. The writ petition is opposed by the respondents by filing their affidavit-in-opposition. The averments made in the affidavit have been carefully perused by me. The main contentions of the respondents are that prior to Dev Dutt's case, there was no requirement to communicate the downgrading of ACR to an employee as long as the grading is at the level of above average, and it was after 13.4.2010 that a new guidelines of the Department of Personnel and Training came to be issued requiring that even below benchmark grading contained in the ACR should be communicated. According to the answering respondent, the Office memorandum dated 14.5.2009 requiring communication of the full APR (earlier known as ACR) including the overall grading and assessment of integrity to the concerned officer after the report is complete with the remarks of the Reviewing and Accepting Officer, etc. has been made with prospectively i.e. with effect from 1.4.2009. The ACR was not communicated to him earlier as there was no provision or guidelines in the government department to communicate below benchmark grading in the ACR to the officer concerned: the petitioner was, however, appropriately counseled from time to time and necessary endorsements were accordingly made in the relevant ACRs. It is asserted by the answering respondent that the ACRs of the petitioner for the following period was communicated to him vide the letter dated 12.10.10: (a) ACR for the period from 1.4.05 to 31.3.06 Assessment 'average' made by the Reviewing Officer (RO) in the ACR was upgraded by the Reviewing Officer in the ACR was upgraded by the Accepting Officer (AO) to box grading 7 i.e. Good which Benchmark for his next promotion. (b) ACR for the period from 1.4.06 to 3.7.06 Assessment 'average' made by the Reviewing officer was further corroborated by the Accepting Officer. Adverse marks were communicated to the officer vide letter dated -- as referred to in para. 31 of the ACR(?). (c) ACR for the period from 1.4.08 to 31.3.09 Assessment 'average' made by the Initiating Officer (IO) was corroborated by the Reviewing officer and further accepted by the Accepting officer. Adverse remarks were communicated to the officer dated 28.7.09 as referred in para. 31 of the ACR. 3. It is also the case of the answering respondent that all the cuttings/over-writings made in the marking has been duly authenticated by the Initiating officer. Further, the officer was counseled in writing vide RCC letter dated 22.7.2008 as recorded in para. 23(b) of the ACR. It is asserted. That the 10/RO/AO are the best judge to assess the performance of the petitioner for his actual performance of duties on the ground at different level under them during the period under report. The grading awarded by them are, therefore, fully justified. The representation made by the petitioner against below benchmark graded upon him were duly considered by the competent authority and rejected vide the communication dated 25.5.2011. The grading awarded by them are, therefore, fully justified. The representation made by the petitioner against below benchmark graded upon him were duly considered by the competent authority and rejected vide the communication dated 25.5.2011. The subsequent representation as already noted was rejected by the impugned order by observing that there is no provision for appeal/representation for second review once the first representation was already decided. Another representation 28.7.2011 submitted by the petitioner reconsidering his up-gradation was also duly considered by the competent authority, who, however, rejected the same vide the communication dated 14.10.2011. The answering respondent points out that the DPC for promotion from AEE (Civil) to grade of EE (Civil) for the vacancy year 2011-12 was held at Secretariat BRDB on 23.9.11 wherein 33 officers were recommended for promotion. As per the guidelines issued by the Department of Personnel & Training, the ACRs for the period from 2005-06 to 2009-10 were evaluated by the DPC to assess the suitability of the candidates. As per the Master Seniority List (MSL), the name of the petitioner was also included at Sl. No. 26 of the Eligibility List. The DPC, however, after considering his case in accordance with the applicable standing instructions, found him to be unfit for promotion. It is also pointed out by the answering respondents that the DPC for promotion from AEE (Civ) to EE (Civ) for the year 2012-2013 was held on 4.1.2013 wherein the name of the petitioner was also considered for the promotion with reference to his ACRs for the period from 2006-07 to 2010-11 and the standing instructions, but he was found unfit for the promotion. It is the contention of the answering respondent that the DPC, in terms of the said guidelines and the decision of the Apex Court in UOI & Anr. vs. S.K. Goel & Ors., (2007) 14 SCC 641 the DPC enjoyed full discretion to devise its method and procedure for objective assessment of suitability and merit of the candidates being considered by it, for which the interference of the High Court is not called for. These are the sum and substance of the case of the respondents in defending the impugned decision. They, therefore, urge this Court to dismiss the writ petition, which is bereft of merit. 4. Unfolding his submissions, Mr. These are the sum and substance of the case of the respondents in defending the impugned decision. They, therefore, urge this Court to dismiss the writ petition, which is bereft of merit. 4. Unfolding his submissions, Mr. I.H. Saikia, the learned counsel for the petitioner, submits that though it is the duty of the superior officer to give opportunity to the petitioner to improve his performance by way of giving advice/instruction or by giving warning/counselling, he did not give any warning or performance enhancing counselling, orally or otherwise, to the petitioner during the reporting period in question: he came to know about those adverse entries only when they were communicated to him by the letter dated 12.10.2010. According to the learned counsel, such omissions call for expunging the adverse entries made against the petitioner. 5. There is no dispute at the bar that the adverse entries in the ACRs of the petitioner for the periods from 1.4.2005 to 31.3.2006, from 1.4.2006 to 3.7.2006 and from 1.4.2008 to 31.3.2009 were never communicated to him in time and that these uncommunicated averse entries were used to deny him promotion. After all, the benchmark of the ACR for promotion to the post of Executive Engineer is "Good": the "Average" ACR is considered to be adverse for promotion to this post. The law in this field is no longer res integras following the three-Judge Bench decision of the Apex Court in Sukhdev Singh vs. Union of India, (2013) 9 SCC 566 . "6. We are in complete agreement with the view in Dev Dutt vs. Union of India: (2008) 8 SCC 725 : (2008) 2 SCC (L & S) 771 particularly paras 17, 18, 22, 37 and 41 as quoted above. We approve the same. 7. A three-Judge Bench of this Court in Abhijit Ghosh Dastidar v. Union of India followed Dev Dutt vs. Union of India: (2008) 8 SCC 725 : (2008) 2 SCC (L & S) 771. In para. 8 of the Report, this court with reference to the case under consideration held as under: (Abhijit Ghosh v. Dastidar case (2009) 16 SCC 146 : (2010) 1 SCC (L & S) 771, SCC p. 148) "8. Coming to the second aspect, that though the benchmark 'very good' is required being considered for promotion, admittedly, the entry of 'good' was not communicated to the appellant. Coming to the second aspect, that though the benchmark 'very good' is required being considered for promotion, admittedly, the entry of 'good' was not communicated to the appellant. The entry of 'good' should have been communicated to him as he was having 'very good' in the previous year. In those circumstances, in our opinion, non-communication of entries in the ACR of a public servant whether he is in civil, judicial, police or any other service (other than the armed forces), it has civil consequences because it may affect his chances for promotion or getting other benefits. Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution. The same view has been reiterated in the above referred decision (Dev Dev Dutt vs. Union of India: (2008) 8 SCC 725 : (2008) 2 SCC (L & S) 771, SCC p. 738, para. 41) relied on by the appellant. Therefore, the entries 'good' if at all granted to the appellant, the same should not have been taken into consideration for being considered to promotion to the higher grade. The respondent has no case that the appellant had ever been informed of the nature of the grading given to him." 8. In our opinion, the view taken in Dev Dutt vs. Union of India: (2008) 8 SCC 725 : (2008) 2 SCC (L & S) 771 that every entry in ACR of a public servant must be communicated to him/her within a reasonable period is legally sound and helps in achieving three fold objectives. First, the communication of every entry in the ACR to a public servant helps him/her to work harder and achieve more that helps him in improving his work and give better results. Second and equally important, on being made aware of the entry in the ACR, the public servant may feel dissatisfied with the same. Communication of the entry enables him/her to make representation for upgradation of the entered in the ACR. Third, communication of every entry in the ACR brings transparency in recording the remarks relating to a public servant and the system becomes more conforming to the principles of natural justice. We, accordingly, hold that every entry in ACR? poor, fair, average, good or very good? must be communicated to him/her within a reasonable period. 9. Third, communication of every entry in the ACR brings transparency in recording the remarks relating to a public servant and the system becomes more conforming to the principles of natural justice. We, accordingly, hold that every entry in ACR? poor, fair, average, good or very good? must be communicated to him/her within a reasonable period. 9. The decisions of this Court in Satya Narain Shukla v. Union of India: (2006) 9 SCC 69 : 2006 SCC (L & S) 1599 and K.M. Mishra v. Central Bank of India: (2008) 9 SCC 120 : (2008) 2 SCC (L & S) 833 and other decisions of this Court taking a contrary view are declared to be not laying down good law." 6. Undoubtedly, the seniority position of the petitioner among Assistant Executive Engineer (Civil) in the Border Road Organization in the Seniority/Gradation list is No. 8 and that the benchmark in the ACRs for promotion to the next higher post of Executive Engineer is "Good" in the five preceding years. With respect to his ACR for the period from 1.4.2005 to 31.3.2006, 1 am of the view that there is no reason for grading him "Average" when the Accepting Officer graded him "Good", more so, when his view is considered to be final. Again, in para. 27 of the ACR, the Reviewing Officer has downgraded his grading by two marks without any justification: this is mandatory in law. Moreover, when out of 31 criteria, 23 were endorsed either as "Very Good" or "Good", the final grading given as average appears to be perverse. Coming now to the ACR for the period from 1.4.2006 to 3.7.2006, it is seen that the total ACRs consists of the period from 1.4.2006 to 31.3.2007, but of which the period from 1.4.2006 to 3.7.2006 were recorded as "Average" whereas the remaining period has the grading of above the benchmark. There is no dispute that no performance enhancing counselling verbally or otherwise was ever given to the petitioner. The settled position of law is that for recording an adverse remark, the Initiating/Reviewing/Accepting authorities are required to record justification in writing. The non-communication of the "Average" entries in the said ACRs has civil consequences inasmuch as it has already affected his chance for promotion. The settled position of law is that for recording an adverse remark, the Initiating/Reviewing/Accepting authorities are required to record justification in writing. The non-communication of the "Average" entries in the said ACRs has civil consequences inasmuch as it has already affected his chance for promotion. Moreover, this is a case in which the "Average" gradings recorded by the Initiating Officer were downgraded by the superior authorities on more than one occasion. Under the circumstances, the omission on the part of the respondent authorities to communicate to the petitioner the "Average" gradings given to him is contrary to the law enunciated by the Apex Court and is, therefore, not sustainable in law. Resultantly, this writ petition is allowed. The respondent authorities are directed to communicate the "Average" entries for the period (i) 1.4.2005 to 31.3.2006, (ii) 1.4.2006 to 3.7.2006 and (iii) 1.4.2008 to 31.3.2009 within two months from the date of receipt of a copy of this judgment. On receipt of the communication, the petitioner may make the representation, if he so chooses, against the said entries within two months thereafter and the said representation shall be decided by the respondent authorities within two months thereafter. If his grading are upgraded, he shall be considered for promotion to the post of Executive Engineer within three months thereafter and if he is selected, he shall be given the promotion with effect from the date his juniors are promoted with consequential benefits.