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2017 DIGILAW 1041 (GAU)

Union of India v. Samir Kumar

2017-08-03

AJIT SINGH, MANOJIT BHUYAN

body2017
JUDGMENT & ORDER Manojit Bhuyan, J. 1. The respondent herein Sri Samir Kumar had joined Border Roads Organization (BRO) as Assistant Executive Engineer (E&M) and in the course of his employment he was promoted to the post of Executive Engineer (E&M) and was given foreign posting of two years, besides being awarded commendation certificates and medals by the Govt. of India. The Non-Functional Section Grade (NFSG) at the grade pay of Rs. 7,600.00/- per month became due to him with effect from 27.06.2010 and thereafter to Non-Functional Upgradation (NFU) at the grade pay of Rs. 8,700.00/- per month with effect from 01.07.2011. For conferment of such benefits, the bench mark in the gradings recorded in the Annual Confidential Reports (ACR) for the preceding five years was required to be “Very Good”. However, for the periods from 01.04.2006 to 31.03.2007; 01.04.2007 to 28.11.2007 and 29.11.2007 to 31.03.2008, the final gradings recorded by the Accepting Officer were “Good”, “Average”, “Good” respectively. To be precise, for the period from 01.04.2006 to 31.03.2007, the gradings recorded by the Initiating Officer, Technical Officer/Reviewing Officer and the Accepting Officer were “Outstanding”, “Very Good”, “Good” respectively. For the period from 01.04.2007 to 28.11.2007, the officers concerned gave gradings as “Very Good”, “Very Good”, “Average” respectively and for the period from 29.11.2007 to 31.03.2008, it was recorded as “Very Good”, “Average”, “Good” respectively. 2. The respondent was served with the letter dated 25.10.2010, enclosing therewith photocopies of the ACRs relating to the three periods aforementioned, containing the entries/gradings recorded therein. This letter of 25.10.2010 was issued in terms of the Office Memorandum dated 13.04.2010 issued by the Government of India, Ministry of Personnel, Public Grievances & Pensions where instructions were made that if an employee is to be considered for promotion in a future DPC and his ACRs for the period prior to 2008-2009, which would be reckonable for assessment of his fitness, contained final gradings which are below the bench mark for his next promotion, the concerned employee has to be given a copy of the relevant ACR for his representation before such ACRs are placed before the DPC. As the name of the respondent was being considered for Modified Assured Career Progression (MACP) to the next grade, the final gradings given by the Initiating Officer/Reviewing Officer/Accepting Officer in his ACRs for the three periods mentioned above, which were below the bench mark, were made available to him, enabling the respondent to make representation. The respondent submitted representation on 26.11.2010 for up-gradation of the gradings to the bench mark level of “Very Good”, by expunging the adverse entries. Said representation was rejected on 27.07.2011. Another representation was made on 28.11.2011 for reconsideration of his case, the fate of which is not known from the available records. Aggrieved, the respondent instituted the related WP(C) 6678/2013 with prayer for quashing of the adverse remarks in his ACRs for the periods 01.04.2006 to 31.03.2007; 01.04.2007 to 28.11.2007 and 29.11.2007 to 31.03.2008. Prayer was also made for quashing of the Order dated 27.07.2011 rejecting his representation dated 26.11.2010 and for directions to the appellants herein to grant NFSG at the grade pay of Rs. 7,600.00 per month with effect from 26.03.2010 and NFU at the grade pay of Rs. 8,700.00 per month with effect from 01.07.2011. 3. In the backdrop of the facts of the case and on consideration of the law relating to the recording of ACRs, as decided by the Supreme Court in the decisions referred to by the learned Single Judge, the writ petition was allowed by remanding the matter for fresh consideration of the case of the respondent for grant of NFSG at the grade pay of Rs. 7,600.00/- per month with effect from 27.06.2010 and NFU at the grade pay of Rs. 8,700.00/- per month with effect from 01.07.2011 by the Screening Committee at par with his batch mates. A further direction was made that the gradings given in the ACRs for the periods mentioned above shall not be taken into account by the Screening Committee and the suitability of the respondent be independently assessed on the basis of the observations made in the judgment and in accordance with law. The gradings recorded in the ACRs for the period from 01.04.2006 to 31.03.2007; 01.04.2007 to 28.11.2007 and 29.11.2007 to 31.03.2008, along with the order dated 27.07.2011 were quashed. Aggrieved, the present appeal has been preferred by the Union of India and Others. 4. We have heard Mr. S.C. Keyal, learned Assistant SGI for the appellants and Mr. The gradings recorded in the ACRs for the period from 01.04.2006 to 31.03.2007; 01.04.2007 to 28.11.2007 and 29.11.2007 to 31.03.2008, along with the order dated 27.07.2011 were quashed. Aggrieved, the present appeal has been preferred by the Union of India and Others. 4. We have heard Mr. S.C. Keyal, learned Assistant SGI for the appellants and Mr. I.H. Saikia, learned counsel for the respondent/writ petitioner. We have also perused the materials placed before us. 5. There is no dispute to the fact that copies of the ACRs for the periods aforementioned were communicated to the respondent in a bunch by letter dated 25.10.2010. The pleaded stand of the appellants is that prior to the issuance of the aforestated Office Memorandum dated 13.04.2010 there was no requirement to communicate the below benchmark gradings in the ACRs to officers concerned. The requirement came only with the said Office Memorandum dated 13.04.2010. Submission made is that in the absence of any guidelines compelling any government departments to communicate below benchmark/adverse/remedial remarks in the ACR, the below benchmark gradings in the ACRs of the respondent for the periods above were not communicated at any earlier point of time. The same were communicated on 25.10.2010 following the instructions in the said Office Memorandum dated 13.04.2010. Submission is also made that the respondent had made representations and the same were considered and rejected. This is the primary stand which, according to the appellants, did not receive due consideration and appreciation by the learned Single Judge. 6. Testing the arguments above, it is seen from Office Memorandum dated 06.01.2010 that communication of the complete ACR including the overall gradings and assessment of integrity to the officer concerned for representation was made effective from the reporting period 2008-09 vide an earlier Office Memorandum dated 14.05.2009. It is reflected in the Office Memorandum dated 06.01.2010 that the practice in vogue prior to the issuance of the Office Memorandum dated 14.05.2009 was for communicating only adverse remarks in the ACR to the officer concerned for his representation, if any. This position has also been admitted by the appellants in paragraph 6 of its affidavit-in-opposition filed in the related writ petition. To reiterate, the admitted fact is that there had been a practice of communicating only adverse remarks in the ACRs even prior to issuance of the Office Memorandum dated 14.05.2009. 7. This position has also been admitted by the appellants in paragraph 6 of its affidavit-in-opposition filed in the related writ petition. To reiterate, the admitted fact is that there had been a practice of communicating only adverse remarks in the ACRs even prior to issuance of the Office Memorandum dated 14.05.2009. 7. In the above context, it would now be apposite to consider the case in Dev Dutt v. Union of India & Ors, reported in (2008) 8 SCC 725 . The Supreme Court decided this case on 12.05.2008 and the law laid down therein have remained undisturbed until this date, rather relied upon by three Judge Bench in Abhijit Ghosh Dastidar, reported in (2009) 16 SCC 146 and in the case of Sukhdev Singh v. Union of India & Others, reported in (2013) 9 SCC 566 . Turning to the case in Dev Dutt (supra), the Supreme Court was considering the Annual Confidential Report (ACR) of the appellant therein for the year 1993-1994. As the grading of the appellant for the said year was “Good” and the benchmark for consideration for promotion being “Very Good”, he was not considered for promotion by the DPC held on 16.12.1994. The legal issue involved in Dev Dutt (supra) was whether the “Good” entry in the ACR, which adversely affected the appellant’s promotion, ought to have been communicated to him so as to afford him opportunity of making representation against it. In this context one Office Memorandum dated 10/11.09.1987 of the Govt. of India was noticed which provided for communication of adverse entries only and not “Good” entry. The Supreme Court held that “Good” entry is in fact an adverse entry as it forecloses the chance of a candidate from being considered for promotion. It was further held that the “Good” entry adversely affecting chances of promotion should have been communicated within a reasonable period enabling the making of a representation against it. The Supreme Court held that “Good” entry is in fact an adverse entry as it forecloses the chance of a candidate from being considered for promotion. It was further held that the “Good” entry adversely affecting chances of promotion should have been communicated within a reasonable period enabling the making of a representation against it. The Supreme Court clarified that every entry in the ACR of a public servant must be communicated within a reasonable period, which in its turn goes to achieve two objects, firstly, a public servant would know about the assessment of his work and conduct in the estimation of his superiors, which would enable him to improve his work in future and, secondly, he would have an opportunity of making a representation against the entry if he feels that it is unjustified and then pray for its upgradation. 8. In the instant case the benchmark in the gradings recorded in the ACRs for the preceding five years was required to be “Very Good”. The relevant periods where gradings were recorded below benchmark level were for the periods from 01.04.2006 to 31.03.2007; 01.04.2007 to 28.11.2007; and 29.11.2007 to 31.03.2008. The final gradings of either “Good” or “Average” in all the aforesaid three periods did not reach the benchmark level and as it stood to adversely affect the promotional prospects of the respondent. The same were clearly adverse entries, which ought to have been communicated to the respondent within a reasonable period. 9. The grading of either “Good” or “Average” in the ACRs for the relevant periods are clearly adverse entries in the light of the decision in Dev Dutt (supra). On the very admission of the appellants, practice in vogue prior to 2009 was for communicating adverse remarks only in the ACRs to the officers concerned for representation. In the instant case, such adverse entries gradings were communicated to the respondent in a bunch only in the year 2010 and not within a reasonable period. In this situation, the entries of “Good” and “Average” so given to the respondent at a belated period should not have been taken into consideration while considering his case for promotion to the higher grade. 10. On the findings above and having regard to the law laid down in Dev Dutta (supra), we find no infirmity in the judgment under appeal. The directions and order of the learned Single Judge stands affirmed. 10. On the findings above and having regard to the law laid down in Dev Dutta (supra), we find no infirmity in the judgment under appeal. The directions and order of the learned Single Judge stands affirmed. The present writ appeal stands accordingly dismissed, however, without any order as to costs.