[Cites 1, Cited by 0]
Gauhati High Court
Pankaj Dixit vs The Union Of India And 3 Ors on 19 December, 2025
Author: Soumitra Saikia
Bench: Soumitra Saikia
Page No.# 1/19
GAHC010077972023
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2129/2023
PANKAJ DIXIT
S/O K.C. DIXIT, R/O 101/158A, KUMBHA MARG, PRATAP NAGAR,
SANGANER, JAIPUR, RAJASTHAN, PIN-302033, PRESENTLY WORKING AS
EXECUTIVE ENGINEER (CIVIL) UNDER H/Q 14 BRTF, UNDER CHIEF
ENGINEER, PROJECT VARTAK, TEZPUR, C/O 99 APO
VERSUS
THE UNION OF INDIA AND 3 ORS.
THROUGH THE SECRETARY TO GOVT. OF INDIA, MINISTRY OF DEFENCE,
R.NO. 101-A, SOUTH BLOCK, NEW DELHI-110011
2:THE JOINT SECRETARY (BORDER ROADS)
MINISTRY OF DEFENCE
B WING
4TH FLOOR
SENA BHAWAN
DELHI CANTT.
NEW DELHI-110011
3:THE DIRECTOR GENERAL OF BORDER ROADS
HEADQUARTER DGBR
SEEMA SADAK BHAWAN
RING ROAD
NEW DELHI-110011
4:THE CHIEF ENGINEER (PROJECT) VARTAK
PIN-931716
C/O 99 APO
TEZPUR
ASSA
Page No.# 2/19
Before
Hon'ble Mr. Justice SOUMITRA SAIKIA
Advocates for the petitioner : Mr. IH Saikia, Advocate
Advocate for the respondents : Mr. H Gupta, CGC
Date on which judgment was reserved : 19.09.2025
Date of pronouncement of Judgment : 19.12.2025
Whether the pronouncement is of
the operative part of the judgment? : No
Whether the full judgment has been pronounced : Yes
Judgment and Order (CAV)
Heard Mr. IH Saikia, learned counsel for the petitioner. Also heard Mr. H
Gupta, learned Central Government Counsel, for the respondents.
2] The petitioner is a permanent resident of the state of Rajasthan and
he was serving as an Executive Engineer (Civil) under the Border Roads
Engineering Service in the General Reserve Engineering Force (GREF), 14 Border
Roads Task Force under Project Vartak, C/o.99 APO, at the time when the writ
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petition was filed.
3] The essential facts necessary for deciding the matter is that the
petitioner was initially appointed as an Assistant Executive Engineer (Civil) on
18-05-2002 in the General Reserve Engineering Force in Border Roads
Engineering Service. The respondent Department had initiated the process for
promotion to the post of Executive Engineer (Civil) from the feeder category of
Assistant Executive Engineer (Civil) for the vacancy year 2010-11. The petitioner
although eligible for being promoted to the next higher post from Assistant
Executive Engineer (Civil) to the post of Executive Engineer (Civil), he was not
promoted to the next higher post on the ground of having below benchmark
grading (BBM) for the relevant years under consideration in his ACRs. According
to the petitioner for promotion in the vacancy year of 2010-11 the relevant
years under consideration are 2004-05, 2005-06, 2006-07, 2007-08, 2008-09.
According to the petitioner for the year 2004-05, his ACR gradings were 'partly
good' and 'partly very good'. For the year 2007-08 and 2008-09, his ACR
gradings were 'very good' and 'good' respectively. However, for the years 2005-
06 and 2006-07 his ACR gradings were "average". According to the petitioner
because of 2 (two) average gradings for the years 2005-06 and 2006-07 he was
considered having below benchmark gradings and therefore, he was not
considered for promotion. According to the petitioner, these 2 (two) gradings of
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'average' for the years 2005-06 and 2006-07 were adverse remarks and
therefore, were required to be communicated to the petitioner enabling him to
represent before the higher authority before his case was considered for
promotion by the Departmental Promotion Committee (DPC). At the time when
the gradings of "average" was awarded before the matter being considered by
the Departmental Promotion Committee (DPC), the respondent authorities did
not communicate these gradings to the petitioner and therefore, he was
deprived from filing appropriate representations before the authorities. There
was no warning or no performance enhancing counseling, neither verbal nor
written or any intimation was issued to the petitioner for enhancement of his
performance for the same 2 (two) periods. Subsequently, the petitioner after
having received the impugned ACRs filed representation on 20-07-2010, praying
for upgradation of the below benchmark gradings received in the Annual
Confidential Reports (ACRs) for the year 2005-06 and 2006-07. As the said
representation was not considered, the petitioner filed a supplementary
representation on 30-03-2011. The respondents, however, did not consider the
claims of the petitioner and by order dated 25-11-2011 the claim of the
petitioner was rejected. Subsequently, the DPC again considered the cases of
eligible officers in its meetings held on 13-06-2011 and 23-09-2011 and
thereafter, promotional orders were issued on 24-06-2011 and 05-10-2011.
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However, the case of the petitioner was not recommended for promotion
because of the below benchmark gradings received in the ACR for the year
2005-06 and 2006-07. Being aggrieved, the petitioner filed an appeal dated 25-
11-2011 before the authorities concerned. Subsequently, again on 04-01-2013,
another DPC was held, however, the case of the petitioner was not
recommended, even though some other similarly situated candidates having
below benchmark gradings were recommended for promotion. According to the
petitioner, the non-functional upgradation was due to the petitioner on 18-05-
2009, but the same has been denied to the petitioner on account of having
below benchmark gradings in the ACRs for the relevant years under
consideration. Finally, by a meeting held on 20-11-2014, the DPC recommended
the case of the petitioner for promotion and thereafter, the petitioner was finally
promoted to the post of Executive Engineer (Civil) on 26-06-2015. The
grievance of the petitioner is that in view of the law holding the field, where
there is downgrading in the ACRs, the same are required to be communicated to
the officer for representing before Higher Authorities well prior to his case being
placed and considered by the DPC. It is submitted that uncommunicated
adverse remarks in the ACRs cannot be taken into consideration by the DPC
while considering the case of the petitioner for promotion.
4] Learned counsel to the petitioner has attempted to persuade the
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Court that in a block of 5 (five) years where the petitioner for the year 2004-05,
his ACR gradings were 'partly good' and 'partly very good'. For the year 2007-08
and 2008-09, his ACR gradings were 'very good' and 'good' respectively and for
the years 2005-06 and 2006-07, his ACR gradings were "average". According to
the petitioner, the gradings of the petitioner for the years 2005-06 and 2006-07
as "average" has to be treated to be adverse remark when compared to the
better gradings to which the petitioner was awarded by the authorities for the
other three years. No reasons were communicated as to why the petitioner was
suddenly graded as 'average' when the previous year he had received partly
good and partly very good. This according to the petitioner ought to have been
communicated to the petitioner and therefore, ought to have been reconsidered
by the Authorities and the same not having been done, he had approached this
Court earlier by filing WP(C) No. 519 of 2018 which came to be disposed of by
Judgement and Order dated 17-11-2022 directing the respondent authorities to
revisit the grievances projected by the petitioner through his representations
dated 20-07-2010 and 30-03-2011 within a period of 6 (six) weeks. The
respondent authorities, however, by the impugned order dated 10-01-2023
rejected the claim of the petitioner without considering his case in the proper
perspective. Being aggrieved, the present writ petition has been filed.
5] The learned counsel for the petitioner by placing reliance of the
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judgments of the Apex Court rendered in Dev Dutt vs. Union of India and
Others reported in (2008) 8 SCC 725, Abhijit Ghosh Dastidar vs. Union of India
and Others reported in (2009) 16 SCC 146, Sukhdev Singh vs. Union of India
and Others reported in (2013) 9 SCC 566 etc. submits that where downgrading
of the petitioner was resorted to by the authorities concerned, it was duty
bound on the respondent Authorities to communicate the same to the petitioner.
The learned counsel for the petitioner submits that the law laid down by the
Apex Court makes it abundantly clear that communication of gradings in the
ACRs need not be restricted to only adverse remarks but where there is a
downgrading in the ACRs as compared to the gradings received in the previous
or in the succeeding years, the concerned officer is required to be
communicated with these gradings enabling him to file appropriate
representation before the authorities for review and reconsideration of the
gradings awarded. Such exercise was required to be done by the respondents
before placing the case of the petitioner in the DPC for due consideration.
6] The learned CGC, on the other hand, submits that the grading of
average cannot be treated to be adverse remarks and consequently, the same
was not communicated to the petitioner. The learned CGC relying on the
Government of India Circular No. 21011/1/2010-ESTT.-A dated 13-04-2010
submits that for all future DPCs; ACRs prior to the period 2008-2009 which
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would be reckonable for assessment, which are below the benchmark, will be
communicated to the concerned officer/employee.
7] It is submitted that since the petitioner was given the benchmark of
'average', prior to issuance of the Government of India Circular No.
21011/1/2010-ESTT.-A dated 13-04-2010, therefore, the same was not
considered to be adverse and as a consequence thereof the same were not
communicated. It is only after the Government of India Circular No.
21011/1/2010-ESTT.-A dated 13-04-2010 that all future DPCs, ACRs which were
reckonable for assessment, which are below the benchmark gradings were
communicated to the concerned officers.
8] Learned counsel for the parties have been heard and pleadings
available on record have been carefully perused.
9] The petitioner, after being considered by the DPC to be eligible for
promotion on 2011-2014, the case of the petitioner was recommended for
promotion, and the petitioner was subsequently promoted to the post of
Executive Engineer on 26-06-2015. However, the claim of the petitioner is that,
as his below benchmark ratings were never communicated to the petitioner by
the respondent authorities, prior to the same being placed before the DPC for
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consideration for promotion to the next higher post of Executive Engineer (Civil)
for the vacancy year 2010-11, the petitioner's case for promotion could not have
been rejected by the DPC without the same having been communicated to the
petitioner as have been declared in the law laid down by the Apex Court.
10] The petitioner has projected a claim that without being permitted to
file a representation for reconsideration of his below benchmark gradings by the
appropriate authority, his case could not have been considered by the DPC and
rejected on the ground of having below benchmark gradings for the year 2005-
06 and 2006-07. The matter was considered by a Co-ordinate Bench of this
Court when the petitioner had earlier urged the same issue before the Writ
Court. The Co-ordinate Bench by Judgement and Order dated 17-11-2022
passed in WP(C) No. 519 of 2018, upon consideration of the entire matter,
concluded that the respondent authority concerned should revisit the grievances
projected by the petitioner through his representations dated 20-07-2010 and
30-03-2011.The respondents were directed to initiate the examination and
complete the same as expeditiously as possible, preferably within the outer limit
of 6 (six) weeks from the date on receipt of a certified copy of this order. The
Co-ordinate Bench had held that in the event of such examination, the
competent authority is of the view that the gradings in the ACR of the petitioner
for the period under consideration requires to be upgraded. The petitioner will
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be entitled to all consequential benefits flowing out of such a decision.
11] Thereafter, by Memorandum dated 10-01-2023, the petitioner was
informed that in pursuance to the directions contained in the Judgement and
Order dated 17-11-2022 passed in WP(C) No.519/2018, the competent authority
had given due consideration, but no new points have been noticed on the issue
and that the case is devoid of any merits and therefore, rejected. As a
consequence thereof the petitioner is before this Court. The stand of the
respondents is that it is only by the Government of India Circular No.
21011/1/2010-ESTT.-A dated 13-04-2010 that for all future considerations of the
DPCs; ACRs prior to the period 2008-2009 below benchmark gradings were
required to be communicated to the concerned candidates. Therefore, it is only
pursuant to the issuance of the said OM that the gradings were communicated
to the petitioner. Subsequently, the petitioner was also considered for promotion
in the DPC declared on 20.11.2014 and was promoted to the post of Executive
Engineer (civil) with effect from 26.06.2015. It is therefore submitted that,
according to the respondents, the below-benchmark grading received by the
petitioner was 'average' and the same in the context of maintenance of
confidential records, cannot be considered to be adverse remarks and therefore
there is no requirement to communicate the same until the OM dated 13-04-
2010 was issued by the Department. Nevertheless, upon a direction issued in
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the Judgement and Order dated 17-11-2022 passed in WP(C) No.519/2018, the
matter was revisited but no new points were noticed and accordingly the same
was rejected.
12] In Dev Dutt (supra), the Apex Court categorically examined the
gradings recorded in the ACR of an employee belonging to the Border Roads
Organisation. This appeal before the Apex Court had travelled from Gauhati
High Court. The stand taken by the respondents before the Apex Court in Dev
Dutt (supra) is exactly similar to the one taken before this Court. So, in the facts
of Dev Dutt (supra), the issue was whether a grading of ' good' can be
considered to be an adverse remark when the benchmark required for
consideration for promotion is 'Very good'. The Department maintained that
since 'good' is not an adverse remark, it was not required to be communicated
to the concerned officer. The Apex Court, however, overruled the said objection
and held that every entry and not merely a poor or an adverse entry relating to
an employee under the state or an instrumentality of the state, whether in civil,
judicial, police or other services (except the military), must be communicated
within a reasonable period and it makes no difference whether there is a
benchmark or not. Even if there is no benchmark, non-communication of an
entry may adversely affect the employee's chances of promotion (or getting
some other benefit) because when comparative merit is considered for
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promotion, (or some other benefit), a person having 'good' or 'average' or 'fair'
entry certainly has less chances of being selected than a person having 'very
good' or 'outstanding' entry.
13] The Apex Court went on to hold that the principles of natural justice
which includes fairness and transparency in public administration requires that
all entries (whether poor, fair, average, good or very good) in the annual
confidential report of a public servant, whether in civil, judicial or police or any
other state service (except the military) must be communicated to him within a
reasonable period so that he can make a representation for its upgradation. The
Apex Court held that this is the correct legal position even though there may be
no Rules/ Government Order requiring communication of entry or even if there
is a Rules/ Government Order prohibiting it, because principles of non-
arbitrariness in state action as envisaged by Article 14 of the Constitution of
India in the opinion of the Apex Court requires such communication. The Apex
court held that Article 14 of the Constitution of India will override all rules and
subsequent orders.
14] These directions, however, were held to be not applicable to military
officers as have been clarified again by the Apex Court in Union of India vs
Major Bahadur Singh reported in (2006) 1 SCC 368. The Apex Court held that
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non-communication of entries in annual confidential reports of a public servant,
whether in civil, judicial or police or any other state service (except the military),
has civil consequences because it may affect the chances of promotion or
chances of promotion or to get any other benefits. It was held that non-
communication of such entries would be arbitrary and violative of Article 14 of
the constitution of India. Relevant paragraphs of the judgement are extracted
below:
".....
10. Hence, in our opinion, the "good" entry should have been communicated to the
appellant so as to enable him to make a representation praying that the said entry for
the year 1993-1994 should be upgraded from "good" to "very good". Of course, after
considering such a representation it was open to the authority concerned to reject the
representation and confirm the "good" entry (though of course in a fair manner), but at
least an opportunity of making such a representation should have been given to the
appellant, and that would only have been possible had the appellant been
communicated the "good" entry, which was not done in this case. Hence, we are of the
opinion that the non-communication of the "good" entry was arbitrary and hence illegal,
and the decisions relied upon by the learned counsel for the respondent are
distinguishable.
11. Learned counsel for the respondent submitted that under Office Memorandum No.
21011/4/87 [Estt. 'A'] issued by the Ministry of Personnel/Public Grievance and Pensions
dated 10/11-9-1987, only an adverse entry is to be communicated to the employee
concerned. It is well settled that no rule or government instruction can violate Article 14
or any other provision of the Constitution, as the Constitution is the highest law of the
land. The aforesaid office memorandum, if it is interpreted to mean that only adverse
entries are to be communicated to the employee concerned and not other entries, would
in our opinion become arbitrary and hence illegal, being violative of Article 14. All similar
rules/government orders/office memoranda, in respect of all services under the State,
whether civil, judicial, police, or other service (except the military), will hence also be
illegal and are therefore liable to be ignored.
12. It has been held in Maneka Gandhi v. Union of India [(1978) 1 SCC 248 : AIR 1978
SC 597] that arbitrariness violates Article 14 of the Constitution. In our opinion, the non-
communication of an entry in the ACR of a public servant is arbitrary because it deprives
the employee concerned from making a representation against it and praying for its
upgradation. In our opinion, every entry in the annual confidential report of every
employee under the State, whether he is in civil, judicial, police or other service (except
Page No.# 14/19
the military) must be communicated to him, so as to enable him to make a
representation against it, because non-communication deprives the employee of the
opportunity of making a representation against it which may affect his chances of being
promoted (or get some other benefits). Moreover, the object of writing the confidential
report and making entries in them is to give an opportunity to a public servant to
improve his performance, vide State of U.P. v. Yamuna Shanker Misra [(1997) 4 SCC 7 :
1997 SCC (L&S) 903] . Hence such non-communication is, in our opinion, arbitrary and
hence violative of Article 14 of the Constitution.
13. In our opinion, every entry (and not merely a poor or adverse entry) relating to an
employee under the State or an instrumentality of the State, whether in civil, judicial,
police or other service (except the military) must be communicated to him, within a
reasonable period, and it makes no difference whether there is a benchmark or not.
Even if there is no benchmark, non-communication of an entry may adversely affect the
employee's chances of promotion (or getting some other benefit), because when
comparative merit is being considered for promotion (or some other benefit) a person
having a "good" or "average" or "fair" entry certainly has less chances of being selected
than a person having a "very good" or "outstanding" entry.
17. In our opinion, 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 upgradation.
Hence, non-communication of an entry is arbitrary, and it has been held by the
Constitution Bench decision of this Court in Maneka Gandhi v. Union of India [(1978) 1
SCC 248 : AIR 1978 SC 597] that arbitrariness violates Article 14 of the Constitution.
........
36. In the present case, we are developing the principles of natural justice by holding
that fairness and transparency in public administration requires that all entries (whether
poor, fair, average, good or very good) in the annual confidential report of a public
servant, whether in civil, judicial, police or any other State service (except the military),
must be communicated to him within a reasonable period so that he can make a
representation for its upgradation. This in our opinion is the correct legal position even
though there may be no rule/G.O. requiring communication of the entry, or even if there
is a rule/G.O. prohibiting it, because the principle of non-arbitrariness in State action as
envisaged by Article 14 of the Constitution in our opinion requires such communication.
Article 14 will override all rules or government orders.
37. We further hold that when the entry is communicated to him the public servant
should have a right to make a representation against the entry to the authority
concerned, and the authority concerned must decide the representation in a fair manner
and within a reasonable period. We also hold that the representation must be decided
by an authority higher than the one who gave the entry, otherwise the likelihood is that
the representation will be summarily rejected without adequate consideration as it
would be an appeal from Caesar to Caesar. All this would be conducive to fairness and
transparency in public administration, and would result in fairness to public servants.
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The State must be a model employer, and must act fairly towards its employees. Only
then would good governance be possible.
......
41. In our opinion, non-communication of entries in the annual confidential report of a
public servant, whether he is in civil, judicial, police or any other service (other than the
military), certainly has civil consequences because it may affect his chances for
promotion or get other benefits (as already discussed above). Hence, such non-
communication would be arbitrary, and as such violative of Article 14 of the
Constitution."
Subsequent, view was also adopted in the case of Abhijit Ghosh Dastidar
(supra) as also in Pratap Singh (supra) and Sukhdev Singh (supra). This has
been the consistent view of the Apex Court and has been consistently followed
even in several orders passed by several High Courts including the Gauhati High
Court.
15] As discussed hereinabove, the judgment of the Apex Court in Dev
Dutt (supra) was rendered in a matter relating to services under the Border
Roads Organisation. Therefore, with effect from the date of delivery of the
judgment in Dev Dutt (supra), i.e. 12th May 2008, the law laid down by the
Apex Court is that every entry in the ACR, whatever be the gradings earned by
the employee concerned must be communicated to the employee in order to
enable the said employee to make representations for reconsideration or re-
evaluation of the gradings before the appropriate higher authority. Therefore,
the stand taken by the respondents that it was only with effect from the
issuance of Government of India Circular No. 21011/1/2010-ESTT.(A) dated 13-
04-2010, requiring communication of gradings in ACRs for all future DPCs, that
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such gradings were communicated to the petitioner, cannot be accepted, as the
law declared by the Apex Court governs the issue in question. The issue here is
the requirement of communication of the entries in the ACRs irrespective of
whether they are to be termed as adverse remarks or not. The Apex Court is
not only an arbiter of the constitution but is a source of law itself. When the
Apex Court has declared a law or has rendered a judgement interpreting the law
for a particular provision, the same unless indicated in the judgement has to be
considered to be in force with immediate effect unless otherwise indicated in the
judgement itself.
16] The Apex Court rendered the judgment in Dev Dutt (supra), i.e. 12th
of May, 2008 and therefore, the law laid down by the Apex Court has to be
held to be binding on all subordinate Courts, and all authorities including the
respondent authorities with effect from the date of the judgement was passed.
This is more so in view of the fact that the respondent before the Apex Court in
Dev Dutt (supra) and the respondent in the present proceedings are one and
the same, namely, the Border Roads Organisation.
17] Therefore, the plea taken by the Border Roads Organisation that it is
only with effect from the issuance of the Government of India Circular No.
21011/1/2010-ESTT.(A) dated 13-04-2010 and only for future DPCs, ACRs are
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required to be communicated and as a consequence thereof, the ACRs in the
question for the years under consideration, namely, 2005-06 and 2006-07, in
which period the petitioner got 'average' gradings in the ACRs were not
communicated at the relevant point in time, cannot be accepted.
18] The facts make it very clear that the consideration for promotion are
in respect of the vacancies for the year 2010-11 and therefore, on a day when
the DPC was scheduled to hold its meeting the Judgment rendered in Dev Dutt
(supra) has already declared the law and has been in effect from the date of
delivery of the judgment i.e. 12th of May, 2008. The respondents cannot be
permitted to acknowledge the interpretation of the Apex Court, merely, on the
ground that no specific notification was issued by the concerned Department in
the Government. Once law is declared by the Apex Court the same has to be
held to be binding with immediate effect unless the contrary is specified in the
judgments itself. The respondents were already given an opportunity by this
Court in the earlier proceeding where by Judgement and Order dated 17-11-
2022 passed in WP(C) No. 519 of 2018 the matter was remanded to the
Authorities directing them to revisit the orders passed, however, the same was
not considered by the respondents on the ground that no new points arose and
therefore, rejected the prayer of the petitioner, which is impugned in the present
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proceedings.
19] Under such circumstances, this Court is of the view that the
respondents have deliberately flouted and neglected to accept the law declared
by the Apex Court in Dev Dutt (supra) and subsequent judgments thereafter
merely on the ground that no specific Office Memorandum and/or Government
order has been issued. This aspect has been specifically clarified in the
judgment of Dev Dutt (supra) itself.
Therefore, in view of the above discussion, this Court has reached an
unequivocal condition that the action of the respondents in refusing to consider
the prayer of the writ petitioner is arbitrary and unconscionable and therefore,
the same is required to be set aside. It is ordered accordingly. The impugned
order dated 10.01.2023 is set aside.
20] The respondents will now reconsider the claim of the writ petitioner in
respect of the below benchmark gradings and to examine as to why the
petitioner's claim towards re-evaluation of the gradings awarded for the
concerned years are directed to be undertaken. The respondents authorities will
examine the claim of the petitioner and as to why the petitioner was granted
below bench mark gradings for the concerned years and if upon re-evaluation
the authorities finds that the below bench marks gradings are required to be
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recalled and appropriate gradings are required to be issued then consequential
order shall be passed. If it is found after re-evaluation of the gradings awarded
for the concerned years that the petitioner was unduly given below the bench
marks gradings then the competent authority will place the case before the
Review DPC and consider the claim for notional promotion with effect from the
date his juniors were promoted. This entire exercise shall be completed within a
period of 60 (sixty) days from the date of receipt of a certified copy of this
order. Needless to say, any such order that is passed by the concerned
Authority, the same shall be communicated to the writ petitioner.
21. With the above observations and directions, the writ petition stands
allowed and disposed of.
JUDGE
Comparing Assistant
