Makam Kishore Kumar vs Union Of India & Others
2021 Latest Caselaw 1641 j&K

          HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                          AT JAMMU

                                                  Reserved on : 03.12.2021
                                                  Pronounced on : 09.12.2021

                                                   SWP No.1966/2013

Makam Kishore Kumar                              .....Petitioner

                           Through: Mr. P.C. Sharma, Advocate

                  versus

Union of India & others                            .....Respondent(s)

                           Through: Mr. Vishal Sharma, ASGI
                                    Mr. Eishaan Dadhichi, CGSC

Coram: HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE


                                   JUDGMENT

1. Through the medium of this petition, the petitioner is seeking to quash

Office Memorandum No.BRDB/04/1826/EE(Civ)/2011/GE-1 dated

20.07.2011, issued by respondent No.1, whereby the representation filed by the

petitioner for upgradation of below bench mark ACR gradings has been

rejected. The petitioner is also seeking a direction to the respondents to grant

him non-functional upgradation in the pay scale of Rs.37400 to Rs.67000 with

grade pay of Rs.8700 per month in Pay Band (PB-4) with effect from

01.07.2006 on the analogy of similarly situated persons.

2. The facts-in-brief, as projected in the writ petition, are that the petitioner

came to be appointed as Assistant Executive Engineer (Civil) in Border Roads

Organization on 16.06.1992. He was promoted as Executive Engineer (Civil)

on 13.02.2001. In the year 2011 he received a communication dated

26.04.2011 from HQ Director General Border Roads informing him that 2 SWP 1966/2013

although his name was being considered for promotion against the post of

Superintending Engineer (Civil), but since the Reviewing Officer and

Accepting Officer has accorded below bench mark grading in his ACR for the

period 01.04.2004 to 30.07.2007, as such he was asked to represent within 15

days from the receipt of said communication. Accordingly, the petitioner

submitted the representation in the month of May, 2011, however, the

respondents vide office memorandum No.BRDB/04/1826/EE(Civ)/2011/GE-1

dated 20.07.2011, impugned herein, rejected the same. Hence, the present writ

petition.

3. Learned counsel appearing for petitioner argued that the respondents on

similar issue had given promotion to one Bharat Singh Panwar, Executive

Engineer (Civil) to the post of Superintending Engineer (Civil) after the writ

petition being WP(C) No.2494/2011 filed by him was allowed by the High

Court of Gauhati vide judgment and order 03.08.2012. Learned counsel further

argued that the case of petitioner 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, learned counsel argued that assessment of the

petitioner was not proper and he could not have been graded below the bench

mark.

4. Objections have been filed by the respondents averring therein that the

ACRs of the petitioner from the years 2004 to 2007 are confidential in nature 3 SWP 1966/2013

and the same are made keeping in view the performance of the petitioner as per

the policy of the department. It is averred that the ACRs of the petitioner were

not adverse but he was graded below bench mark grading, i.e., good. Further, it

is averred that prior to issuance of DoP&T OM No.21011/1/2010-Estt.A dated

13.04.2010 there were no instructions for communication of ACR grading to

the concerned officers. As such after the issuance of office memorandum dated

13.04.2010, the ACRs of petitioner, which were below bench mark, were

communicated to him so as to enable him to submit his representations against

the below bench mark grading for consideration by the competent authority. It

is further averred that the representation of petitioner was considered and

rejected by the competent authority. It is also averred that one Bharat Singh

Panwar, Executive Engineer (Civil) was recommended for promotion to the

post of Superintending Engineer (Civil) by a review DPC on the order of

Gauhati High Court in WP(C) No.2494/2011 decided on 03.08.2012.

5. I have heard learned counsel appearing for the parties, considered their

rival contentions and also perused the file.

6. The petitioner has questioned the recording of adverse entries in his

ACRs for the period with effect from 01.04.2004 to 31.03.2005 (2004-05);

06.06.2005 to 31.03.2006 (2005-06); 01.04.2006 to 15.11.2006 - 16.11.2006

to 28.03.2007 (2006-07) and 01.04.2007 to 30.07.2007 (2007-08). Though out

of five the Initiating Officer had accorded two „good‟ and three „very good‟

gradings, the Reviewing Officer downgraded two „very good‟ gradings to

„good‟, whereas the Accepting Officer downgraded the rest one „very good‟

grading to „good‟ without assigning any reasons, although Office

Memorandum dated 13.04.2010 clearly provided that a very cautious approach 4 SWP 1966/2013

is required while awarding the grading and that any grading below the bench

mark is to be adequately justified by citing specific reasons, more particularly

when there was difference of opinion in awarding grading by the Initiating

officer vis-à-vis Reviewing Officer and Accepting Officer.

7. With regard to the adverse entries in the ACRs of the petitioner with

effect from 01.04.2004 to 30.07.2007, the respondents only in the year 2011

vide communication dated 26.04.2011 had asked the petitioner to represent

within 15 days from the receipt of said communication. The stand of

respondents is that prior to issuance of DoP&T OM No.21011/1/2010-Estt.A

dated 13.04.2010 there were no instructions for communication of adverse

ACR grading to the concerned officers. Dealing with the similar situation with

regard to the claim for promotion of one Sri Dhiraj Kumar from the post of

Assistant Executive Engineer (Civil) to the next higher rank of Executive

Engineer(Civil) in the Border Roads Organization (BRO), while dismissing the

appeal of Union of India, what is held by a Division Bench of High Court of

Gauhati in Writ Appeal No.204/2016 in case, titled as, Union of India vs Sri

Dhiraj Kumar, decided on 03.08.2017, is reproduced hereunder:

"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 5 SWP 1966/2013

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. 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."

8. Admittedly, the petitioner came to know about the aforesaid adverse

entries in the ACRs only when those were communicated to him vide letter

dated 26.04.2011. Immediately after receipt of the impugned ACRs, petitioner

submitted representations dated 18.05.2010 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 20.07.2011. The respondents rejected the

representation of petitioner in a casual manner without assigning any reason

because along with the petitioner, the respondents also rejected the

representations of four other persons vide the same order informing them that

their prayer for upgradation of the gradings was duly considered, but nothing

exemplary was found in their performance during the period under

consideration and hence their representations for upgradation of their ACRs

were rejected by the competent authority. These were the only words while

rejecting the representation of petitioner. Thus, the order rejecting the 6 SWP 1966/2013

representation of petitioner was not only cryptic but stereotyped and

unreasoned one.

9. The object of recording of ACRs have been succinctly gone into by the

High Court of Gauhati in Bharat Singh Panwar Vs Union of India & Ors.,

reported in (2013) 1 GLR 320, relevant paragraphs whereof are reproduced

hereunder:

"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. 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 7 SWP 1966/2013

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. 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."

10. 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 vs Union of India, (2008) 8 SCC 72 can be said to be a significant

milestone in the development of this particular branch of service

jurisprudence. 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 clarified that every entry in

the ACR of a public servant must be communicated within a reasonable 8 SWP 1966/2013

period. 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. 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. 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.

9 SWP 1966/2013

11. 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.

12. 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. 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."

13. In the instant case, such adverse entry gradings were communicated to

the petitioner in a bunch only in the year 2011 and not within a reasonable

period. In this situation, the entries "Good" so given to the petitioner at a

belated period should not have been taken into consideration while

considering his case for promotion to the higher grade.

10 SWP 1966/2013

14. In the light of above, the writ petition is allowed. Office Memorandum

dated 20.07.2011 is hereby quashed thereby remanding the matter back to

the respondents for fresh consideration. The gradings given in the above ACRs

shall not be taken into account by the review DPC, who may independently

assess the suitability of the petitioner consistently with the observations

made above and in accordance with law. Petitioner's case is required to be

considered with effect from the date his juniors were promoted against the

post of Superintending Engineer (Civil). While considering the case of

petitioner, the respondents shall also take into consideration the judgment

delivered in Bharat Singh Panwar (supra) by the Gauhati High Court in WP(C)

No.2494/2011. Let this exercise be carried out within a period of three

months from the date a certified copy of this judgment is provided to the

respondents by the petitioner against proper receipt. The outcome of the

consideration of the matter shall be communicated to the petitioner well in

time. Needless to say that depending upon the outcome of the consideration,

the petitioner will be entitled to all consequential benefits.

              Jammu:                                                           (Tashi Rabstan)
              09.12.2021                                                           Judge
              (Anil Sanhotra)




                                           Whether the order is reportable ?        Yes/No
                                           Whether the order is speaking ?          Yes/No




ANIL SANHOTRA
2021.12.09 12:19
I attest to the accuracy and
integrity of this document