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2015 DIGILAW 1105 (GAU)

SAMIR KUMAR v. UNION OF INDIA

2015-08-31

UJJAL BHUYAN

body2015
JUDGMENT : Heard Mr. IH Saikia, learned counsel for the petitioner and Mr. SK Medhi, learned Central Govt. Counsel for the respondents. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of adverse remarks recorded in his Annual Confidential Reports (ACRs) for the following periods: - i) 01.04.2006 to 31.03.2007 ii) 01.04.2007 to 28.11.2007 and iii) 29.11.2007 to 31.03.2008 and further seeks quashing of order dated 27.07.2011, issued by respondent No.2 rejecting the representation of the petitioner for upgradation of the gradings in the ACRs. Petitioner also seeks a direction to the respondents to grant him Non-Functional Section Grade (NFSG) at the grade pay of Rs.7,600.00 per month w.e.f. 27.06.2010 and Non-Functional Upgradation (NFU) at the grade pay of Rs.8,700.00 per month w.e.f. 01.07.2011. Case of the petitioner is that he had joined as Assistant Executive Engineer (E&M) in the Border Roads Organization (BRO) on 03.04.1996. He was promoted to the post of Executive Engineer (E&M) on 27.06.2005. According to the petitioner, because of his meritorious service, he was given foreign posting of two years, besides being awarded commendation certificates and medals by the Govt. of India. NFSG at grade pay of Rs.7,600.00 per month became due to the petitioner w.e.f. 27.06.2010 and the NFU at the grade pay of Rs.8,700.00 per month was due to him w.e.f. 01.07.2011 as those benefits were granted to his batch mates with effect from the aforesaid dates. It is stated that for conferment of such benefit, the bench mark in the gradings recorded in the ACRs for the preceding 5 years should be “Very Good”. Contention of the petitioner is that for the aforesaid three periods, he received final gradings of “Good”, “Average” and “Good” respectively. For the period from 01.04.2006 to 31.03.2007, the Initiating Officer had graded the petitioner as “Outstanding”, which was downgraded to “Very Good” by the Technical Officer and further downgraded to “Good” at the level of Reviewing Officer and Accepting Officer. For the period from 01.04.2007 to 28.11.2007, the Initiating Officer graded him “Very Good”, which was maintained by the Technical Officer. However, the Reviewing Officer downgraded him to “Average”. For this period, the Reviewing Officer was also the Accepting Officer. For the period from 29.11.2007 to 31.03.2008, the initial grading “Very Good” was maintained by the Technical Officer, but was downgraded to “Average” by the Reviewing Officer. However, the Reviewing Officer downgraded him to “Average”. For this period, the Reviewing Officer was also the Accepting Officer. For the period from 29.11.2007 to 31.03.2008, the initial grading “Very Good” was maintained by the Technical Officer, but was downgraded to “Average” by the Reviewing Officer. However, at the level of Accepting Officer, petitioner was graded “Good”. Petitioner came to know about the aforesaid adverse entries in the ACRs only when those were communicated to him vide letter dated 25.10.2010. Immediately after receipt of the impugned ACRs, petitioner submitted representation dated 26.11.2010 before the competent authority for upgradation of the gradings to the bench mark level of “Very Good” by expunging the adverse entries. However, representation of the petitioner was rejected vide order dated 27.07.2011 by a cryptic order. Petitioner was informed that his prayer for upgradation of the gradings was duly considered, but nothing exemplary was found in his performance during the period under consideration and hence his representation for upgradation of his ACRs was rejected by the competent authority. Aggrieved, present writ petition has been filed seeking the relief as indicated above. Contention of the petitioner is that his case was considered by the Screening Committee by taking into account the adverse entries recorded in his ACRs, which were not communicated to him. The ACRs were communicated to the petitioner very belatedly and when represented against the same, it was rejected without any proper consideration. The procedure followed in grading him in his ACRs by the respective authorities was not inconformity with the applicable guidelines. On merit also, it is contended that assessment of the petitioner was not proper and he could not have been graded below the bench mark. Respondents in their affidavit have contended that prior to the Office Memorandum of the Department of Personnel and Training (DOPT), Govt. of India, dated 13.04.2010, there were no instructions for communication of ACR entries to the concerned Government servant. It was in compliance to the OM dated 13.04.2010 that the ACR gradings, which were below the bench mark for the period under consideration, were communicated to the petitioner on 25.10.2010. It is contended that petitioner was properly assessed and the gradings given reflected his performance for the period under consideration. It is stated that the grading “Good” is not adverse. There were no provisions for communication of “Good” grading to the petitioner at the relevant point of time. It is contended that petitioner was properly assessed and the gradings given reflected his performance for the period under consideration. It is stated that the grading “Good” is not adverse. There were no provisions for communication of “Good” grading to the petitioner at the relevant point of time. It is admitted that petitioner was eligible for consideration for grant of NFU w.e.f. 01.07.2011. His name was considered by the Screening Committee upto the year 2013-2014. The Screening Committee had finally assessed him fit for grant of NFU with grade pay of Rs.8,700.00 w.e.f. 01.04.2013. Order in this regard was issued on 11.04.2014. With regard to NFSG with grade pay of Rs.8,700.00, it is stated that petitioner became eligible for such consideration w.e.f. 01.04.2011, which is under process. Thus from the above, it is evident that Screening Committee while considering the case of the petitioner for conferment of aforesaid financial benefits w.e.f. 27.06.2010 and 01.07.2011 had considered the aforesaid uncommunicated gradings of the petitioner, which were below the bench mark of “Very Good”. The object of recording of ACRs have been succinctly gone into by this Court in a recent decision in Bharat Singh Panwar Vs Union of India & Ors., reported in (2013) 1 GLR 320 . This Court has held that preparation and maintenance of confidential report of a Government servant is a means to an end and not an end in itself. Ultimate objective is to optimize the performance level of the Government servant. This is possible only when the short-comings as well as the good qualities of a Government servant are brought to his notice when periodical assessments are made. The main focus of the Reporting Officer should therefore be developmental rather than judgmental. This Court has held as under:- “ 8. As reflected in dossier of preparation and maintenance of confidential reports, the system of Confidential Reports on the performance of Government servants is a means to an end and not an end in itself. The ultimate goal is to optimise the achievement of Government policies and programmes. This is possible only if the Confidential Reports lead to the optimisation of the performance of the concerned Government servants. The main focus of the Reporting officer should, therefore, be developmental rather than judgmental. The ultimate goal is to optimise the achievement of Government policies and programmes. This is possible only if the Confidential Reports lead to the optimisation of the performance of the concerned Government servants. The main focus of the Reporting officer should, therefore, be developmental rather than judgmental. A Confidential Report should be a true indicator of the achievement of the Government servant; it should not be a mere tool to control or discipline him. 9. The system of Confidential Reports has two principal objectives and the Reporting officer should have a very clear perception of these objectives. The first and foremost is to improve the performance of the subordinate in his present job. The second objective is to assess the potentialities of the subordinate and prepare him through appropriate feedback and guidance for future possible opportunities in service. To a great extent, the second objective is dependent on the achievement of the first. 10. It is the duty of the superior officer to give the subordinate a clear understanding of the tasks to be performed and to provide requisite resources for his performance. The subordinate is required to contribute to the best of his capacity to the qualitative and quantitative achievement of the given tasks making optimum use of the resources provided. Also, both the superior and his subordinate have to be necessarily aware of the ultimate goal of their organisation, which can be achieved only through the joint efforts of both of them. This is the basic philosophy underlying any system of Confidential Report. 11. The performance of every Government servant is assessed annually through his Confidential Report, which is an important document providing the basic and vital inputs for assessing the performance of the Government servant and for assessing his suitability for his further advancement in his career on occasion like confirmation, promotion, crossing of E.B., selection for deputation, selection for foreign assignment etc. Performance appraisal through confidential reports is a tool for human resource development in order to enable a Government servant to realise his true potential. It is not a fault finding process, but a developmental one. 12. In Annexure-3 guidelines dated 12.04.2010, it has been provided that a very cautious approach is required while awarding the grading and that any grading below the bench mark is to be adequately justified by citing specific reasons. It is not a fault finding process, but a developmental one. 12. In Annexure-3 guidelines dated 12.04.2010, it has been provided that a very cautious approach is required while awarding the grading and that any grading below the bench mark is to be adequately justified by citing specific reasons. Whatever adverse entry is made, same should be substantiated by counselling letters/warning letters or other relevant documents. It is also provided that in case of any difference of opinion, reasons for the same are required to be recorded. Emphasising the responsibility of the Accepting Authority, it has been provided that the said authority has to ensure that all the ACRs are duly initiated/reviewed within time. It also provides that adequate counselling/advise should be provided to its subordinates whose ACRs are written for overcoming the deficiencies and shortcomings.” Therefore, the object is the improvement in the performance level of the Government servant through yearly monitoring, guidance and counselling where necessary. Further, the expression 'Confidential Report' is a misnomer because there is nothing confidential about it. Infact, it has now developed into a transparent procedure of assessment as would be seen from the succeeding paragraphs with the objective of guiding and developing the performance of the Government servant for optimum utilization of his potential. The law relating to recording of Annual Confidential Reports (ACRs) has by now crystallized by a series of decisions of the Apex Court. The decision in Dev Dutt (supra) can be said to be a significant milestone in the development of this particular branch of service jurisprudence. The Apex Court has held that every entry, irrespective of whether it is poor, average, good, very good or outstanding, should be communicated to the concerned Government servant within a reasonable period. Explaining the rational behind such a proposition, the Apex Court held that non-communication of such an entry may adversely affect the employee in two ways: (1) if the entry is 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 can pray for its upgradation. Thus non-communication of an entry in ACR is arbitrary and therefore violative of Article 14 of the Constitution. Thus non-communication of an entry in ACR is arbitrary and therefore violative of Article 14 of the Constitution. The Apex Court further held that when the entry is communicated to the Government servant he should have the right to make a representation against such entry. Such representation should be decided by an authority higher than the one who made the entry. The representation must be decided in a fair manner and within a reasonable period. In the context of promotion, it was observed that non-communication of entries in Annual Confidential Reports has civil consequences and may affect the chances of a Government servant for promotion or for availing other benefits. In Abhijit Ghosh Dastidar Vs Union of India, reported in (2009) 16 SCC 146 , the Apex Court referred to the decision in Dev Dutt (supra) and held that non-communication of entries in the Annual Confidential Reports of a public servant has civil consequences as it may affect his chances of promotion or getting other benefits. Uncommunicated entries should not be taken into consideration for the purpose of consideration for promotion to the higher grade. Again in the case of Sukhdev Singh Vs Union of India and Ors., reported in (2013) 9 SCC 573 , a larger Bench of the Hon'ble Supreme Court approved the decision in Dev Dutt (supra) and also referred to the subsequent decision in Abhijit Ghosh Dastidar (supra). It was held as follows: “ In our opinion, the view taken in Dev Dutt (supra) 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 threefold 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 remarks 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. Communication of the entry enables him/her to make representation for upgradation of the remarks 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.” At this stage, the decision in Dev Dutt (supra) may once again be referred to. In the said decision, the Hon'ble Supreme Court observed that communication of entries in the ACRs and giving opportunity to represent against them is particularly important in higher posts which are in a pyramidical structure where often the principle of elimination is followed in selection for promotion. In the light of the above, Court is of the view that the matter is required to be remanded back for fresh consideration of the case of the petitioner for grant of NFSG at the grade pay of Rs.7,600.00 per month w.e.f. 27.06.2010 and NFU at the grade pay of Rs.8,700.00 per month w.e.f. 01.07.2011 by the Screening Committee at par with his batch mates. The gradings given in the above ACRs shall not be taken into account by the Screening Committee, who may independently assess the suitability of the petitioner consistently with the observations made above and in accordance with law. Let the fresh exercise be carried out within a period of three (3) months from the date of receipt of a certified copy of this order and whatever be the outcome of the said exercise, the same should be communicated to the petitioner. It is made clear that if the petitioner’s claim is upheld by the Screening Committee, he would be entitled to the consequential benefits. Accordingly, the gradings recorded in the ACRs for the period - i) 01.04.2006 to 31.03.2007 ii) 01.04.2007 to 28.11.2007 and iii) 29.11.2007 to 31.03.2008 are quashed and consequently, the impugned order dated 27.07.2011 is also quashed. Writ petition is allowed to the extent indicated above, but without any order as to costs.