Union Of India & Ors vs . Joseph K.S
2022 Latest Caselaw 93 Meg

       Serial No.01
       Regular List
                      HIGH COURT OF MEGHALAYA
                          AT SHILLONG
MC (WA) No.64/2021                              Heard on: 17.03.2022
                                                Date of Order: 23.03.2022
Union of India & ors                    Vs.                     Joseph K.S
Coram:
          Hon'ble Mr. Justice Sanjib Banerjee, Chief Justice
          Hon'ble Mr. Justice H.S. Thangkhiew, Judge
Appearance:
For the Appellants                   : Dr. N Mozika, ASG with
                                       Ms. T Sutnga, Adv
For the Respondent                   : Mr. M Chanda, Adv with

Mr. ML Nongpiur, Adv

i) Whether approved for reporting in Yes Law journals etc.:

ii) Whether approved for publication in press: No

JUDGMENT: (per the Hon'ble, the Chief Justice)

Over the ages, jurists of unquestionable eminence have

instructed that the life of law is not logic; but it does not follow that law

is illogical or that it may defy common sense.

2. The appellants herein, on the strength of high authorities that

have ruled the field for decades, seek to suggest as absolute a legal

proposition that jars at first blush. The appellants read such judicial

precedents that cannot be questioned at this level to suggest that even

though a government employee must be made aware of every adverse

remark in his ACR that may stand in the way of his candidature being

considered for future promotion; but when such adverse remark may

result in the services of the concerned employee not being retained

after the completion of a specified number of years in service or upon

the employee attaining a specific age, the communication of such

adverse remark is not mandatory and may be dispensed with. Quite

plainly, it would not stand to reason that a higher right is conferred

when it comes to the denial of consideration for promotion, than when

the employee faces what is effectively a premature termination of

service. Of course, compulsory retirement in the usual course as per the

applicable service rules cannot be seen to be a punishment but, surely,

the prejudice suffered by an employee who is required to compulsorily

retire is no less - and is probably more - than when there is denial of

consideration for promotion.

3. The question that arises for consideration is whether the

service jurisprudence that has developed in this country makes such a

distinction between promotion and compulsory retirement to the extent

that an adverse remark that is capable of denying the concerned

employee the opportunity of being considered for promotion has

perforce to be communicated to him for him to have an opportunity to

make a representation thereagainst; but, even if an adverse remark in

the ACR or any action taken against him may invariably result in the

employee being compulsorily retired (at a specified level and not by

way of punishment), such adverse remark or action taken against him

need not be informed to the concerned employee for him to have a

chance to seek a review or reversal thereof.

4. Before referring to the facts and the applicable service rules,

it may be profitable to preface the discussion by reading the seminal

exposition on the doctrine of precedents by Lord Halsbury in his oft-

quoted speech in the judgment reported at (1901) 1 A.C. 495 (Quinn v.

Leathem) which has been consistently followed in this country:

"Now before discussing the case of Allen v. Flood, (1898) AC 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for

what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at all."

5. The first respondent-writ petitioner was recruited in the

Assam Rifles in 1987 and came through the ranks till his impugned

compulsory retirement in the year 2016. It is the decision to

compulsorily retire the writ petitioner upon the writ petitioner

completing 30 years of service or attaining 55 years of age, that is in

challenge in the present proceedings.

6. The matter turns on the service rules applicable to the writ

petitioner as contained in a set of office instructions in the form of an

advisory issued on August 21, 2015. Paragraphs 1 to 3 of the document

are of relevance in the present context and are set out:

"1. Ref Record Office Instructions No. 1/2004 and 2/2005.

2. As per existing rules, the JCO's/NCO's of Assam Rifles who are willing to serve upto 60 years, their cases will have to be reviewed before completion of 55 years of age or of 30 years of qualifying service.

3. The following are the criteria's while recommending the cases for retention in service beyond 30 years of service or 55 years of age whichever is earlier:-

(a) ACRs.

(i) Out of the last five ACRs grading, minimum three report should be "HIGH AVERAGE".

(ii) Rest two report should not be below "AVERAGE".

(iii) Should be recommended for promotion in all five reports.

(b) Med Standard. JCO's/NCO's should be in med category SHAPE-1, except battle casualties.

(c) Discipline.

(i) JCO's/NCO's should not be involved in any disciplinary cases.

(ii) No discp cases pending/contemplated against the JCO's/NCO's at the time of review.

(iii) Integrity of the JCO's/NCO's should not be doubtful.

(iv) No vigilance complaints is pending against him.

(d) Recommendation to be endorsed by IO/RO/SRO has been asked separately for service review keeping the aspects specified in this instrs."

7. In addition, the appellants place reliance on Office Instruction

No.4/97 dated August 29, 1997 that deals with the preparation of ACRs

of, inter alia, the Junior Commissioned Officers (JCOs) in the Assam

Rifles. Such detailed instruction covers the entire gamut of the

preparation of ACRs, the considerations that would go into the same,

the period for preparation thereof and the like. The appellants have

relied on two aspects from the said instruction pertaining to adverse

report and communication of weak point/adverse remarks. The two

relevant sections may be seen in their entirety:

"Adverse Report

31. Adverse report on a JCO is initiated in the following circumstances:-

(a) When a JCO's service is considered unsatisfactory.

(b) When a JCO's removal from an appointment or employment in his acting rank, for reasons of professional inefficiency is considered necessary.

(c) When it is necessary to record inherent traits of character of a JCO which make his utility to service doubtful.

32. Before a "Adverse Report" is initiated on a JCO, he will be informed in writing of his shortcomings and warned. He will be given a period of 60 days to show improvement. The officer initiating the Adverse Report will mention in the report the date on which the warning was administered and the steps taken by him to help the JCO to improve his performance.

33. Adverse Report will be rendered on the revised ACR form and will be marked "Adverse Report" on the top in red ink. Adverse Report may be initiated at any time."

"Communication or Weak Points/Adverse Remarks "40. Weak Point/Adverse Remarks of Reporting Officer in the CR will be communicated to the JCO in writing. Remarks of Reviewing/Senior Reviewing Officer, where applicable, will be communicated in writing through the Initiating Officer.

41. Non-recommendations for promotion by Reporting Officers will not be communicated to the concerned JCO."

8. At the time that the writ petitioner's case reached the Service

Review Board for consideration as to whether the writ petitioner may

continue in service beyond 30 years or after reaching the age of 55, the

grading obtained and as to whether he was recommended for

promotion in each of the relevant years is indicated in the following

table:

"Sl.      Year         Grading and Recommendation obtained by the
No.                             petitioner in last five ACRs
                         Grading                Recommendation for
                                                      Promotion
(a)      2011-12   7 (Above Average)               'Recommended'
(b)      2012-13   7 (Above Average)               'Recommended'
(c)      2013-14    5 (High Average)               'Recommended'
(d)      2014-15       4 (Average)              'Not Recommended'
(e)      2015-16    5 (High Average)              'Recommended'"

9. The appellants have not asserted that merely because the writ

petitioner's performance was graded as "Average" in the year 2014-15,

he was not recommended to be promoted; nor is it the appellants'

contention that a JCO in the Assam Rifles cannot be recommended for

promotion if his grading in the relevant year is "Average" or that there

is any rule in such regard or such rule is known to its employees. It is

also the admitted position that the fact that the writ petitioner was not

recommended for promotion in the year 2014-15 was not

communicated to him. It is in such circumstances that the legal issue

noticed above arises.

10. By the judgment and order impugned dated May 6, 2021, the

writ court held, at paragraph 25 thereof, that "the proper procedure in

the case of the Petitioner herein would have been for the Respondent

Authorities to communicate the said ACR for the year 2014-15 to the

Petitioner, give him the opportunity to make representation and then

after deciding on the said representation, if retained, the same will

stand in the records." The Court went on to observe that the

uncommunicated ACR which was made the basis for the refusal to

extend the writ petitioner's service "smacks of arbitrariness and

deprivation of justice ..."

11. The writ court referred to several judgments of the Supreme

Court to, in effect, arrive at the finding that "the proposition of law that

an order of compulsory retirement is not liable to be quashed by a

Court merely on the showing that while passing it, uncommunicated

adverse remarks were also taken into consideration" was not absolute.

However, without elucidating on the possible exceptions to the

seemingly absolute proposition enunciated by the Supreme Court, the

writ court perceived that such rule would be inapposite in the present

context on the reasoning evident from paragraph 28 of the impugned

judgment:

"28. However, as observed above, this Court while not disputing the ratio of the decisions cited by the Respondents, in the case of the Petitioner herein the situation would not have come to a pass where he is required to be compulsorily retired from service had he been given the opportunity to contest the remarks of non-recommendation in his ACR for the year 2014-15, which ACR was not communicated to him, therefore, it is not only a case of uncommunicated adverse remarks but also a case of non-recommendation for promotion at the relevant period."

12. Thus, the writ court granted the relief sought by the writ

petitioner in an indirect way and without expressly annulling the order

of compulsory retirement except as a consequence of the non-

communication of the adverse remark in the ACR of 2014-15. The fine

legal question that arises is whether it was a permissible course of

action open to be adopted by the writ court once it perceived the

injustice suffered by the writ petitioner. Such an approach may

sometimes be flawed and even though the appellants may not have

laboured over such aspect, it is the duty of the appellate forum to notice

it.

13. The applicable law may sometimes be in a straitjacket, but

justicing is rarely as rigid. The law may appear to the court to operate

harshly in the peculiar set of circumstances before it, whereupon the

court deploys the jurisprudentially permissible devices at its command

to dilute its effect. The judicially acknowledged tools may pertain to

statutory interpretation - for example, reading up or reading down the

provision or discovering a case of casus omissus or applying the

doctrine of noscitur a sociis - or to go a step back to find a fault therein

that would vitiate everything done thereafter as a consequence. But in

the court's eagerness to undo an injustice that it perceives may have

been done, its ipse dixit will not be regarded as a legally valid ground.

The decision must be founded on some sound judicial principle, by

even etching out a new principle as long as it is rooted in a firm and

legally acceptable platform.

14. The appellants join issue on such course of action adopted by

the writ court to suggest that the writ court clearly erred in not

following the binding dictum and seeking to make a distinction without

a difference. The appellants also assert that the writ court completely

overlooked paragraph 41 of the Office Instruction No.4/97 that

expressly precluded non-recommendation for promotion being

communicated to the concerned JCO.

15. In addition, the appellants submit that the Assam Rifles is a

disciplined force and while it may be immaterial to make a distinction

between a Central Armed Police Force and a paramilitary force, if the

rules governing the employees in a disciplined force mandate non-

furnishing of certain information to the concerned employee, the

employee can have no manner of grievance in such regard. The

appellants maintain that, at any rate, there was no challenge to the

applicable rules or the office instructions or anything contained in

Office Instruction No.4/97; and, as such, the writ court clearly erred in

law in disregarding the applicable rules without going into the veracity

thereof.

16. In support of the appellants' case, several judgments of the

Supreme Court have been placed. First, a judgment reported at (2013) 9

SCC 566 (Sukhdev Singh v. Union of India) has been brought. Though

such judgment requires remarks in ACRs to be always communicated

to the concerned employee, the appellants submit that the dictum would

not apply to a disciplined force as an exception has been made out in

such regard.

17. The judgment in Sukhdev Singh was rendered on a reference

by a Bench of three upon a two-Judge Bench perceiving a glaring

inconsistency in the decisions reported at (1996) 2 SCC 363 (U.P. Jal

Nigam v. Prabhat Chandra Jain) and at (2006) 1 SCC 368 (Union of

India v. Major Bahadur Singh). The order of reference, quoted in the

judgment of the larger Bench, expounds on the question that arose in

U.P. Jal Nigam: as to whether a down-gradation of the original remark

in the ACR would amount to an adverse remark, such that it would be

required to be communicated to the concerned employee. The answer

rendered in U.P. Jal Nigam is also deduced in the order of reference: in

the event the said adverse remark is not communicated causing

deprivation to the employee to make an effective representation

thereagainst, it should be ignored. The order of reference noticed that in

Major Bahadur Singh it was held that the dictum in U.P. Jal Nigam did

not have universal application and such dictum had to be confined only

to the employees of the relevant employer. The order of reference,

however, perceived the dictum in U.P. Jal Nigam to be an absolute

proposition of law and, hence, referred the issue to a larger Bench.

18. By the time the reference was taken up, the law on the subject

had developed way beyond the point when it was necessary to resolve

the perceived inconsistency. In course of the reference, the Supreme

Court referred to, inter alia, the judgment reported at (2008) 8 SCC 725

(Dev Dutt v. Union of India) and noticed that the question that arose in

Dev Dutt pertained to "the communication of entry in the ACR of a

public servant (other than the military service)". The principle

enunciated in Dev Dutt was also noticed that "every entry in the ACR

of a public servant must be communicated to him within a reasonable

period whether it is poor, fair, average, good or very good entry."

Several paragraphs from the report in Dev Dutt were quoted and the

law declared at paragraphs 17, 18, 22, 37 and 41 of the judgment in

Dev Dutt was approved. Paragraph 8 of the report in Sukhdev Singh

expressly laid down the law on the aspect:

"8. In our opinion, the view taken in Dev Dutt 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."

19. The appellants have also relied on the judgment in Major

Bahadur Singh. However, in the light of the detailed discussion

pertaining to the issue in Sukhdev Singh, the observations in Major

Bahadur Singh may not be of further relevance. The appellants seek to

rely on a sentence in paragraph 38 of the report in Dev Dutt where the

Court observed that the directions issued in the preceding paragraphs of

the judgment will not apply to military officers "because the position

for them is different ..." Dev Dutt also observed that such exception for

military personnel had also been carved out in Major Bahadur Singh.

20. For a start, the Assam Rifles cannot be considered to be a part

of the military and even if it may be regarded as a paramilitary force, it

is evident that it may be akin to the military but it cannot be equated

with the military. Further, but on a lesser note, while the law laid down

in several paragraphs in Dev Dutt was expressly approved in Sukhdev

Singh, paragraph 38 of Dev Dutt is not indicated in paragraph 7 of

Sukhdev Singh; though the larger Bench did notice the caveat attached

to the dictum in Dev Dutt that the principle would not apply to the

military.

21. Indeed, the present matter may be decided on the basis of the

rules applicable to JCOs in the Assam Rifles as have been placed by

the appellants. However, since judgments holding the field for a

considerable period of time have also been placed, it is necessary to

decide whether the law of the land as declared by the Supreme Court

lays down an absolute proposition that when an adverse remark or

some action taken against an employee is taken into consideration

while deciding whether or not to compulsorily retire an employee upon

the employee reaching a certain stage in service and not as a

punishment at the culmination of any disciplinary proceedings, the fact

that such adverse remark or action taken against him may not have

been communicated or informed to the employee or that the employee

may not have had an opportunity to make a representation thereagainst,

will not, in any circumstances, render the consequent decision to

compulsorily retire the employee as bad or vitiate the same.

22. For such proposition, the older judgments reported at (1992)

2 SCC 299 (Baikuntha Nath Das v. Chief District Medical Officer) and

1994 SCC (L&S) 1052 (Union of India v. V.P. Seth) are pressed into

service by the appellants. It is the underlying submission of the

appellants that since the principle of stare decisis instructs that a

proposition of law that has stood the test of time should be left

undisturbed, whether or not a 30-year period can be regarded as long

enough for the doctrine to apply, the rights of a public servant in a

matter pertaining to his promotion and the lack of similar rights in the

matter pertaining to his compulsory retirement cannot be seen in the

same light.

23. In Baikuntha Nath Das an uncommunicated adverse remark

was considered in course of the relevant authority arriving at a

subjective satisfaction that the concerned employee was liable for

compulsory retirement. It is in such context that the Court observed

that an order of compulsory retirement does not amount to punishment

and the principles of natural justice are not required to be observed in

passing an order of compulsory retirement. The Court also laid down

that while exercising the authority of judicial review, strict grounds of

mala fides or arbitrariness or perversity have to be made out for a Court

to interfere with an order of compulsory retirement (when not passed as

a punishment in disciplinary proceedings). In course of the discussion,

the Court noticed that the rule of audi alteram partem may stand

excluded in some spheres of administrative law, particularly when an

element of discretion is vested in high and responsible officers in

deciding whether a particular employee ought to continue in service or

ought to be compulsorily retired upon the completion of a specified

number of years in service or upon attaining a specific age.

24. After clarifying that the general principle is that in some cases

it is only an adverse remark that is required to be communicated and

not every remark, comment or observation made in the confidential

rolls, the rule that was enunciated by the Supreme Court in Baikuntha

Nath Das is found at paragraph 34 of the report:

"34. The following principles emerge from the above discussion:

(i) An order of compulsory retirement is not a punishment.

It implies no stigma nor any suggestion of misbehaviour.

(ii) The order has to be passed by the government on forming the opinion that it is in the public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the government.

(iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary - in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be a perverse order.

(iv) The government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter - of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority.

(v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference.

Interference is permissible only on the grounds mentioned in

(iii) above. This aspect has been discussed in paras 30 to 32 above."

25. In the case of V.P. Seth, a decision was taken by the employer

to compulsorily retire the concerned employee after perusing his record

of service, which included certain adverse remarks that had not been

communicated to the concerned employee. The Court noticed the

principle culled out in Baikuntha Nath Das and observed as follows at

paragraph 3 of the report, immediately after quoting paragraph 34 of

the judgment in Baikuntha Nath Das:

"3. These principles were reiterated with approval in the subsequent decision. It would, therefore, seem that an order of compulsory retirement can be made subject to judicial review only on grounds of mala fides, arbitrariness or perversity and that the rule of audi alteram partem has no application since the order of compulsory retirement in such a situation is not penal in nature. The position of law having thus been settled by two decisions of this Court, we are afraid that the order of the Tribunal cannot be sustained as the same runs counter to the principles laid down in the said two decisions."

26. In terms of the advisory pertaining to service review of JCOs

in the Assam Rifles issued on August 21, 2015, that was the basis for

compulsorily retiring the first respondent-writ petitioner in this case, it

must be noticed that upon a JCO meeting certain eligibility criteria, a

subjective opinion could be formed as to whether he ought to continue

in service or should be required to compulsorily retire. It is apparent

from the relevant advisory that such consideration would arise in cases

of, inter alia, JCOs who were willing to serve upto 60 years and who

were about to complete 55 years of age or 30 years of qualifying

service. That was the basic criterion.

27. Paragraph 3 of the advisory of August 21, 2015 contains

certain grounds which, if attracted, would rule out any further

consideration and even preclude the subjective assessment. Paragraphs

4, 5 and 6 of the said advisory indicate broad parameters while forming

the subjective opinion; but a JCO who does not meet the objective

criteria indicated in paragraph 3 of the advisory, particularly in sub-

paragraph (a) thereof, would not be eligible for consideration at all.

There is no choice in the matter. The authority tasked with the duty of

making of the decision as to whether a JCO should be continued in

service or compulsorily retired, cannot even consider the continuation

in service of a JCO who does not meet the criteria spelt out at the

relevant sub-paragraph of the advisory. Each set of conditions

stipulated in the three clauses of the relevant sub-paragraph is required

to be met by an Assam Rifles JCO before his case for being retained in

service may even be considered.

28. Thus, since the writ petitioner in this case was not

recommended for promotion in one of the last five years preceding the

stage of assessment as to whether he should be retained in service, the

decision-making authority had no power to consider the writ

petitioner's case or offer the writ petitioner the additional years of

service. It was a bar on the power of the decision-making personnel.

The dictum in Baikuntha Nath Das, as reinforced in the judgment in

V.P. Seth, must be confined to a situation where the decision to

continue with the services of an employee or to compulsorily retire him

is based on subjective considerations without there being any objective

criteria as to disqualification for consideration. In such a scenario as in

Baikuntha Nath Das, when the decision rests on the subjective

satisfaction of the decision-making authority, it is possible to take

uncommunicated adverse remarks into consideration; since, even if

such adverse remarks had been positive, there was no impediment to

the decision-making authority arriving at a subjective satisfaction that

the concerned employee was liable to be compulsorily retired.

29. However, when an adverse remark in the ACR or some other

action has the effect of disqualifying the concerned employee from

even being considered for continuation in service - whereupon

compulsory retirement follows as a matter of course - the same

principle of irrelevance of the non-communication of the adverse

remark or the non-intimation of the relevant action will not apply. This

is because when the consideration is purely subjective, even if the

adverse remark or the action taken had been intimated to the employee

and the employee had made a representation thereagainst and the

adverse remark or action taken was removed or undone, it would still

be open to the decision-making authority to compulsorily retire the

concerned employee on such authority's subjective satisfaction that it

was necessary so to do. In such a situation, the non-communication of

the adverse remark or non-intimation of the action taken would lose all

significance since the presence of the adverse remark or the absence

thereof or the consequence of the action taken or its reversal can still

result in the decision-making authority arriving at a subjective

satisfaction that the concerned employee may be retained in service or

may be compulsorily retired. On the contrary, in a situation as the

present, when an adverse remark, or any action taken as a consequence

thereof or otherwise, disqualifies the employee from even being

considered for being retained in service after completion of a specified

number of years or a specific age, there is no element of subjectivity

that is involved. Such an employee is disqualified as a consequence of

the adverse remark or the action taken; and, in such a case, his

candidature does not progress to the stage of consideration on the basis

of subjective satisfaction.

30. The principle, thus, has to be that when an uncommunicated

adverse remark in an ACR or any action taken against an employee,

which is not intimated to him, does not automatically result in a public

servant being disqualified from being retained in service at the

specified stage, such non-communication or failure to intimate him

would not vitiate the subsequent decision of compulsory retirement

based on the subjective satisfaction of the decision-making authority;

but, if an adverse remark in the ACR, or any action taken whether as a

consequence of the adverse remark or otherwise, disqualifies a public

servant from being considered to be retained in service at the specified

stage, the failure to inform the concerned employee thereof would

render the order of compulsory retirement nugatory.

31. The matter may be viewed from several perspectives. Imagine

that the applicable service rules stipulate that only persons with "very

good" and better remarks in their ACRs for the last five years before

reaching the stage of consideration would qualify to be considered for

retention in service. A person may have obtained a less than "very

good" remark in the first of the five relevant years. Thus, by reason of

the applicable rules, his fate would have been sealed at such stage

irrespective of the stellar performance that he may have rendered in the

four subsequent years and the prizes and accolades that he may have

received for such subsequent performance. If the rule were to be as

rigid as suggested by the appellants, it would be detrimental to both the

concerned employee and to the employer and may be opposed to public

policy and against public interest. If, instead, the concerned employee

had a chance to make a representation upon being communicated the

adverse remark or informed of the adverse action, the employer, in its

own interest to avail of the services of someone who had performed so

excellently at a subsequent stage, may reverse the adverse remark.

There could be myriad reasons for an adverse remark. Some superior

officers are more demanding than others and, in the absence of any

standardisation, an employee may fall short of the exacting standards of

his superior, while a lesser employee may pass muster with another

superior officer. There may also be a special reason for the dip in

performance in a particular year which may go against the grain of the

general level of performance maintained by the concerned employee in

all other years in service.

32. It is for the aforesaid reasons that the dictum in Baikuntha

Nath Das, as reiterated in V.P. Seth, would not apply in the present

case. In both Baikuntha Nath Das and V.P. Seth, the relevant adverse

remark in the ACR did not disqualify the concerned employee from

being considered for retention in service; in the present case, the fact

that the writ petitioner was not recommended for promotion in a

particular year, though such fact was not informed to him, ruled him

out from being considered altogether for being retained in service.

33. There is no doubt that when an employee is not considered

for promotion on the basis of an adverse remark in his ACR, he suffers

serious prejudice unless he is afforded an opportunity to make a

representation against the same upon being communicated such

adverse remark. While accepting that compulsory retirement, as in the

case at hand, cannot be seen to be a punishment, yet, when an

employee is willing to continue in service but he is required to be

compulsorily retired, there may be a higher prejudice suffered by such

employee than when he continues in service but he is not promoted or

considered for promotion. Just as consideration for promotion is

regarded as a right without an employee having an absolute right to be

promoted, similarly, an employee has a right to be considered for

retention in service when he is willing to continue in service and

anything that precludes him from being considered ought to be brought

to his notice, not only to comply with the cardinal canons of natural

justice but also to uphold the general principles of justice, equity and

good conscience. This rule will apply with greater vigour if the adverse

remark or the action taken is based on subjective considerations, as in

the present case.

34. When the cases of all comparable employees are put into one

basket and an assessment is made as to who ought to be retained in

service and who ought to be weeded out and such decision depends on

the subjective satisfaction of the decision-making authority, both the

adverse and the positive remarks in the ACRs of all the comparable

employees are taken into account. In such a scenario, the fact that some

of the adverse remarks may not have been communicated to the

concerned employee but are taken into account will not preclude the

decision-making authority from retaining the services of such

employee, if, despite the adverse remarks, in the subjective opinion of

the decision-making authority, the concerned employee warrants such

treatment. The right to be considered for retention in service is then not

affected merely by any adverse remark in the ACR; and hence, the

need to communicate the same may be dispensed with. But when the

right to be considered for retention in service is ruled out as a result of

an adverse remark in the ACR or as a consequence of any action taken,

the failure to communicate the relevant adverse remark or the action

taken would amount to a serious wrong that would vitiate the resultant

compulsory retirement. In such a case, the same principle as judicially

recognised for being entitled to be considered for promotion will also

apply for being entitled to be considered for continuation in service. In

either case, it is the right to be considered - whether for promotion or

for retention in service - that is recognised as a right; but not any

absolute right to be promoted or any absolute right to be retained in

service.

35. There is no doubt that paragraph 41 of the Office Instruction

No.4/97 stipulates that non-recommendation for promotion will not be

communicated to the concerned JCO. However, paragraph 41 of the

said instruction needs to be read in the context of the preceding

paragraph as, a provision, like a person, is known by the company that

it keeps. Paragraph 40 of the instruction mandates that adverse remarks

in the ACR will be communicated to the JCO in writing. If an adverse

remark in the ACR for the relevant year stands in the way of a JCO

being recommended for promotion, such adverse remark has to be

communicated. Once the adverse remark is communicated, a fairness

of procedure would be there as it would afford the JCO a chance to

make a representation, which the employer ought to consider in the

right perspective. The prejudice that the JCO suffers may be well-

deserved and, once he has notice of the adverse remark, procedural due

process is complied with. If the non-recommendation for promotion is

a consequence of the adverse remark, once the adverse remark has been

communicated and the same is continued, whether for the lack of any

representation thereagainst or the rejection of the representation, the

consequence will follow.

36. Paragraph 41 of the said instruction cannot be read in

isolation. In the present case, it is evident that the writ petitioner was

recommended for promotion in the four other years when he secured a

remark better than "average". Thus, if it was only upon the writ

petitioner not obtaining a remark better than "average" that the writ

petitioner was not recommended for promotion in 2014-15, he should

have been informed of the adverse remark and also made aware of the

consequence thereof. If there was any rule that an "average" remark

would preclude a recommendation for promotion in the relevant year,

the writ petitioner ought to have been aware thereof and his attention

need not have been specially drawn thereto as long as he was

communicated the adverse remark. But the appellants have placed no

rule or instruction in such regard. If, as a consequence of such average

remark, the writ petitioner was not recommended for promotion as a

corollary thereto, the writ petitioner's fate was sealed as he fell short of

the objective criteria that would take him to the zone of consideration

for his retention in service. The failure to inform the writ petitioner of

his not being recommended for promotion in the relevant year, which

may have resulted in the grave consequence of the writ petitioner not

qualifying to be considered for retention in service at the specified

stage, caused the writ petitioner irreparable prejudice. It is possible that

even if the adverse action had been communicated and the writ

petitioner made a representation thereagainst, the adverse action may

have still been retained. But such a course of action would have

ensured fairness in the procedure and, in judicial review, it is the

fairness of the procedure that is of paramount importance rather than

the decision rendered at the conclusion of the process. Paragraph 41 of

the relevant instruction would hold good in other cases except when as

a result of a JCO not being recommended for promotion, he would be

disqualified in future to be considered for his services to be retained

upon the employee completing 30 years in service or attaining 55 years

in age.

37. A fortiori, paragraph 41 of Office Instruction No.4/97 has to

be read down in the present scenario since the very act of not

recommending an employee for promotion, in the context of such

employee being retained in service after completing the specified

number of years or attaining the particular age, rules out such employee

from even being considered for retention in service. Simultaneously,

paragraph 40 of the said instruction has to be read up such that, in

addition to every adverse remark being required to be communicated to

the concerned employee as expressly provided therein, even when any

adverse action is taken against an employee that has the effect of putting

such employee out of consideration for being retained in service,

intimation of the relevant action must be given to the concerned

employee.

38. Though the effect of what weighed with the writ court, as is

evident from paragraph 28 thereof quoted above, and the discussion

herein may be the same, there is a huge legal chasm. The writ court

held that the employer was wrong in its not affording the writ petitioner

"the opportunity to contest the remarks of non-recommendation in his

ACR for the year 2014-15, which ACR was not communicated to him,"

But such finding is not factually accurate. There were two distinct

events in the writ petitioner's career in 2014-15. First, he obtained an

"average" grading in his ACR. Secondly, he was not recommended for

promotion in that year. The adverse remark was not the non-

recommendation of the writ petitioner for promotion, it was his

"average" grading; though the writ petitioner not being recommended

for promotion may have been a consequence thereof. Indeed, that

grading and recommendation for promotion are distinct activities

would appear from paragraph 3 of the advisory of August, 2015. Also,

while grading is covered by the first two clauses of paragraph 3(a) of

such advisory, the aspect as to recommendation for promotion is

covered by the third clause therein. It must not be missed here that the

writ petitioner passed the tests under the first two clauses and failed

only at the third. Most importantly, it is plain to see from the second

and third clauses of paragraph 3(a) of such advisory, that there may be

no rule or practice that an "average" grading must result in the

concerned JCO not being recommended for promotion in the relevant

year; otherwise there would be no need for the distinct conditions being

set out in clauses (ii) and (iii).

39. In any event, as the more recent judgments of the Supreme

Court - binding as they are under Article 141 of the Constitution -

instruct that all the entries in the ACRs should be communicated to the

concerned employee, the procedure adopted in this case fell short. It

may also be observed in the context, that in view of the law declared in

Sukhdev Singh, to the effect that all entries in the ACRs should be

communicated to the concerned employees, the dictum in Baikuntha

Nath Das may no longer hold good; or, at the highest, it has to be

confined to the accidental failure to communicate the adverse remarks

in a case of compulsory retirement based purely on subjective

satisfaction.

40. A rather facetious submission has been made on behalf of the

appellants that despite Dev Dutt and Sukhdev Singh mandating the

communication of all entries in the ACRs, there is no sequitur to the

principle in the sense that no consequence for non-compliance of such

mandate has been spelt out in either judgment. As the law declared by

the Supreme Court is binding, when its dictum requires a thing to be

done in a particular way, such thing must be done as ordained. If it is

not so done, it would be actionable. And, if any employee suffers any

prejudice upon an adverse remark not being communicated to him, the

prejudice has to be suspended till the employee has an opportunity to

make a representation against the same and the employer considers

such representation. That is the real effect of the dictum, apart from

making the entire process transparent. Consequently, and as a

corollary, anything that prejudices or has the potential to prejudice the

career prospects of an employee must necessarily be informed to him.

It is in such spirit that the writ petitioner here should have been

informed of the fact that he had not been recommended for promotion,

notwithstanding the letter of paragraph 41 of the relevant advisory, in

view of the apocalyptic impact thereof qua the writ petitioner's future

continuation in service.

41. A final word may be said as to the meaning of the word

'adverse' in the context of an adverse remark in an ACR. There are

several authorities that lay down that the adversity in an adverse remark

depends on the effect that such remark has, rather than how the remark

itself may be generally considered.

42. Such aspect may be illustrated with an example. It is more

politically correct nowadays to dilute the nomenclature in certain cases

in a manner of sugar-coating the pill. If a public employer has four

grades, say, outstanding, very good, good and average, those

employees categorised as average would be regarded as the lowest in

efficiency, though the word 'average' may not otherwise be regarded as

poor or bad. If, then, the rules of the public employer provide that the

consideration as to which of the several vice-chairpersons would be

elevated to the post of chairperson would depend on whichever

candidate has obtained the most "outstanding" grades in the ACR

throughout the career, even a solitary "very good" remark would

amount to an adverse remark in such context.

43. Thus, as to what would amount to an adverse remark is

relative, depending on the nomenclature of the grades and the effect

that a remark may bring about. An adverse remark may, therefore, be

seen to be such a remark that has the potential of being an impediment

to the concerned employee in his career progression, whether

immediately or in the distant future. The moment a remark - even a

praiseworthy remark as "very good" - has the potential of robbing the

concerned employee of a chance to obtain the highest post or benefit

that he may, theoretically, have obtained, it has to be regarded as

adverse and such a remark, which has the potential to be an

impediment to the employee reaching the highest rank or obtaining the

greatest benefit that is theoretically possible, has to be communicated

to the concerned employee for him to avail of the opportunity to make

a representation against the same.

44. However, in the light of the dictum in Sukhdev Singh, the law

of the land is now that all remarks in the ACR should be communicated

to the concerned employee. That would preclude any fine distinction

being made as to what may amount to be an adverse remark and what

may not.

45. For the foregoing reasons, the failure on the part of the

appellant-employer to communicate to the first respondent-writ

petitioner that he had not been recommended for promotion in the year

2014-15 is seen to have occasioned grave prejudice to the writ

petitioner as he was denied a chance to make a representation

thereagainst. As a consequence of the writ petitioner not being

recommended for promotion in the relevant year, the writ petitioner's

fate was sealed and he was precluded from being considered for

retention in service when the time to consider the same arrived. In

effect, as a consequence of the applicable rules, it was known to the

employer in 2014-15 that the writ petitioner would have to retire in

2017 but the writ petitioner had no inkling that his case for retention in

service would not be considered at all since he had, admittedly, not

been informed that he had not been recommended for promotion in

2014-15.

46. In view of the above and the additional reasons furnished, the

order impugned does not call for any interference. The writ petition is

allowed by permitting the writ petitioner to make a representation to

the appellant-employer against the refusal to recommend him for

promotion in 2014-15 (since the writ petitioner is now aware of such

adverse action and any further formal communication thereof would be

an idle formality). If the adverse action is reversed, even if he is not

promoted as a consequence of such correction, it will be open to the

appellant-employer to communicate a decision to the writ petitioner

within a fortnight of receiving his representation as to whether to retain

him in service for the full complement of time; or else, the employer

may require the writ petitioner to compulsorily retire. In case the

decision is of compulsory retirement, it will take effect immediately

upon the writ petitioner being communicated the decision by a notice

served at the writ petitioner's usual address or by the notice being made

over to him by hand. Till such time that the writ petitioner continues in

service in terms of this order, he shall be entitled to all emoluments and

benefits in accordance with the rules as if he had not compulsorily

retired pursuant to the earlier order. The relevant order of September 2,

2016, insofar as it concerns the writ petitioner, is set aside. If, however,

due to the pendency of the proceedings in this Court, the writ petitioner

would have retired prior to today upon being retained in service in

2016, he will be entitled to full benefits as if he continued in service till

the date of his retirement upon attaining the age of 60 years.

47. WA No.6 of 2022 and MC (WA) No.64 of 2021 are disposed

of. Since the writ petitioner has been allowed the full benefits, no costs

are awarded.

      (H.S. Thangkhiew)                            (Sanjib Banerjee)
            Judge                                    Chief Justice


Meghalaya
23.03.2022
"Lam DR-PS"