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2017 DIGILAW 1043 (GAU)

Union of India v. Dhiraj Kumar

2017-08-03

AJIT SINGH, MANOJIT BHUYAN

body2017
JUDGMENT & ORDER : Manojit Bhuyan, J. 1. The claim for promotion to the next higher rank of Executive Engineer by interfering with the gradings in the Annual Confidential Reports of relevant periods was the subject matter in the related writ petition filed by the respondent herein Sri Dhiraj Kumar. At the relevant point of time, he was serving as an Assistant Executive Engineer (Civil) in the Border Roads Organization (BRO). For the purpose of promotion to the rank of Executive Engineer, the bench mark in the gradings recorded in the Annual Confidential Reports (ACRs) of the preceding five years was required to be “Good”. As promotion was due in the year 2011-2012, the Departmental Promotion Committee (DPC) sat on 05.10.2011 for filling up 33 vacancies in the post of Executive Engineer. Respondent’s name was considered but the DPC found him unfit on the basis of his ACR gradings, which were below the bench mark. In the said exercise, few of his juniors were recommended and thereafter promoted. Another DPC was held on 04.01.2013 for the year 2012-2013 in which the respondent was again considered. Yet again, his candidature was rejected due to adverse entry in his ACRs. The relevant periods and respective gradings in his ACRs, as stated in the writ petition, are from (i) 01.04.2005 to 31.03.2006, where the gradings of the Reporting/Initiating Officer, Reviewing Officer and that of the Accepting Officer were recorded as “Good”, “Average”, “Good” respectively, (ii) 01.04.2006 to 03.07.2006, where respective gradings by the officers above were “Good”, “Average”, “Average”, and (iii) 01.04.2008 to 31.03.2009, where the gradings were “Average”, “Average”, “Average” respectively. 2. Prior to the holding of the first DPC on 05.10.2011, the respondent was served with the letter dated 12.10.2010, enclosing therewith photocopies of the ACRs relating to the aforesaid three periods, containing the entries/gradings recorded therein. 2. Prior to the holding of the first DPC on 05.10.2011, the respondent was served with the letter dated 12.10.2010, enclosing therewith photocopies of the ACRs relating to the aforesaid three periods, containing the entries/gradings recorded therein. This letter of 12.10.2010 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 promotion by the DPC against the vacancy year 2010-2011, 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. Three separate representations against the respective years were submitted by the respondent under covering letter dated 06.12.2010. On consideration thereof, the representations were rejected as being devoid of any merits vide Memorandum dated 25.05.2011. Subsequent representations made on 28.07.2011 also stood rejected on 14.10.2011. Aggrieved, the respondent instituted the related WP(C) 202/2013 with prayer for quashing of the adverse remarks in his ACRs for the periods 01.04.2005 to 31.03.2006; 01.04.2006 to 03.07.2006 and 01.04.2008 to 31.03.2009. Prayer was also made for quashing of the Order dated 25.05.2011 whereby his Representation dated 06.12.2010 had been rejected and for direction to the appellants herein to consider his promotion to the post of Executive Engineer with effect from 05.10.2011 by constituting a review Departmental Promotion Committee. 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 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 promotion to the post of Executive Engineer as of the year 2011-2012 by holding review DPC. The learned Single Judge directed that gradings given in the ACRs may not be taken into account by the review DPC and the suitability of the respondent be independently assessed on the basis of the observations made in the judgment and as per law. The gradings recorded in the ACRs for the period from 01.04.2006 to 03.07.2006 and 01.04.2008 to 31.03.2009, along with the Order dated 25.05.2011 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 12.10.2010. 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 12.10.2010 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 and, in fact, the entire exercise was completed before the DPC sat on 05.10.2011. This is the primary stand taken by the appellants 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 the Office Memorandum dated 06.01.2010, enclosed to the Appeal Memo, 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. 6. Testing the arguments above, it is seen from the Office Memorandum dated 06.01.2010, enclosed to the Appeal Memo, 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 4 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 turn our undivided attention to 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. 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 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 “Good”. The relevant periods where gradings were recorded below benchmark level were for the periods from 01.04.2005 to 31.03.2006; 01.04.2006 to 03.07.2006; and 01.04.2008 to 31.03.2009. The final grading of “Average” in all the aforesaid three periods did not reach the benchmark level and as it stood to adversely affect the promotional prospect of the respondent, the same were clearly adverse entries, which ought to have been communicated to the respondent within a reasonable period. It is an admitted fact that in the DPC held on 05.10.2011 some of the officers junior to the respondent had been recommended and thereafter promoted. 9. The grading of “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 entry gradings were communicated to the respondent in a bunch only in the year 2010 and not within a reasonable period. 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 entry 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 “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. The present writ appeal stands accordingly dismissed, however, without any order as to costs.