Central Administrative Tribunal - Gauhati
Subodh Kumar Pattnaik vs Union Of India (Uoi) And Ors. on 18 August, 2005
Equivalent citations: 2006(91)SLJ262(CAT)
ORDER
G. Sivarajan, J. (Vice Chairman)
1. The matter relates to promotion to the post of Director, Geology in the scale of pay of Rs. 12000-16500 in the Geological Survey of India under the Government of India, Ministry of Mines, New Delhi.
2. The applicant is working a Geologist (Senior), M.G.P. Division in the Office of the 4th respondent. The applicant was originally appointed as Geologist (Junior) on selection by the Union Public Service Commission in the year 1976 in the Geological Survey of India. He was promoted as Geologist (Sr.) in the year 1985. He had completed the residency period of 6 years required for promotion to the post of Director (Geology) in the year 1991. The applicant was at serial No. 670 in the seniority list of Geologist (Sr) prepared by the Geological Survey of India as on 1.10.1990. As per the provisional seniority list of Geologist (Sr.) as on 1.8.2000 (Annexure-II) applicant is serial No. 172 while respondents 8 to 10 are serial Nos. 174,175 and 204 respectively. The applicant has filed this O.A. for directions to the official respondents to promote him to the grade of Director (Geology) with effect from the date his juniors were promoted by holding a Review DPC ignoring the uncommunicated downgraded ACR with all consequential service benefits including arrears, etc.
3. The main grievance of the applicant is that though he had put in 28 years of service out of which 19 years he had worked in the feeder cadre of Geologist (Senior) and as such a legitimate expectant for the post of Director (Geology), he had been ignored in the matter of selection by the UPSC on the basis of uncommunicated downgrading of the ACR against the relevant Rules and Regulations and the executive orders issued by the D.O.(P&T), Government of India and the decisions of Courts and Tribunals. The applicant claims that he has an unblemished service career and his name was even nominated for National Mineral Award for 2002 i.e. the highest award in Geology given by the Ministry of Mines, Government of India. His juniors in service, respondent Nos. 8 to 10 and a number of other juniors were promoted to the post of Director (Geology) overlooking his claim. He had also alleged malafide against his reporting authority, the 7th respondent.
4. A written statement is filed on behalf of the respondents. Regarding an averment made by the applicant that though he was qualified and eligible for promotion to the post of Director (Geology) since 1990 onwards his name was not considered by the DPC, the respondents with details has shown that based on his seniority he came in the zone of consideration for selection to the post of Director (Geology) only during the years 2003-2004 and 2004-2005. It is stated that the post of Director (Geology) is a selection post and according to the instructions of the Department of Personnel and Training dated 8.2.2002 the Bench mark for the post is 'very good'. The DPC was held for 53 posts of Director (Geology) for the year 2003-2004 and 26 vacancies for the year 2004-2005 on 10.8.2004; the applicant was considered by the DPC alongwith other eligible officers as he was within the zone of consideration but he was not found fit by the DPC in view of the performance reflected in his Confidential Reports. The duty of a Geologist, it is stated, is to do the field work and submit his report about the mineral deposits in the areas where the field duty was assigned to him. The applicant was asking for office duty during his stay at NER which is not permitted as per duties of the post of Geologist. It is stated that there is no instruction issued by the Department of Personnel and Training on the basis of Supreme Court decisions that below Bench Mark grading should be communicated to the individual. It is also stated that as per the D.O. P&T instructions 'Average' may not be taken as adverse remark. Then how the 'Good' performance of the officer can be treated as adverse remarks. The applicant, it is stated, refused to take assignment of field duties which has been accepted by him in the O.A. The applicant, it is stated, was not recommended by the DPC for promotion keeping in view his performance; his senior and junior were recommended according to the performance/granding reflected in their CRs.
5. The applicant had filed a rejoinder. Various averments regarding the convening of DPCs for the earlier years with reference to the number of vacancies etc., and the vagueness in the matter of details etc., are stated. About the reluctance to do field work mentioned in the written statement it is stated that more than 20% of the Geologists posted in the NER were deployed in Head quarter jobs during the Field Seasons 1997-98 and 1998-99. They were juniors also. It is stated that some of them were never deployed for Field work during long years of posting in NER. Respondent No. 8 is shown as an instance. The applicant, it is stated, had requested the superiors to exclude him from the Field work in the difficult terrains in view of his ailments certified by Doctors which were illegally rejected. The applicant has also narrated his achievements reflected in giving him higher responsibilities. The applicant has relied on the decisions of the Supreme Court and of the High Court and Tribunals in the matter of downgrading of ACRs and its effects.
6. Heard Mr. J.L. Sarkar assisted by Mr. M. Chanda, learned Counsel for the applicant, and Mr A.K. Chaudhuri, learned Addl. C.G.S.C. for the respondents. An officer from New ' Delhi has brought the confidential records of the applicant and also the DPC proposal records maintained by the Government of India and also copies of the proceedings of the DPC held on 10th and 11th August 2004 at Jaipur. Those records were placed before the Bench. Mr. J.L. Sarkar, learned Counsel for the applicant, took us to Paragraphs 4.16 to 4.21 of the application and Paragraph 4.13 of the written statement of the respondents and submitted that the applicant throughout his service career had a good track record; that the applicant was graded 'very good' by the Reporting and Reviewing Authorities in the ACRs for the years 1997-98 1998-99 and 1999-2000, but Shri K. Krishnan Unni, Senior Deputy Director General as the Accepting Authority had downgraded the ACR without any notice or caution to the applicant, that Shri Mohanty as the Reporting Authority of the applicant had mala fide made adverse remarks against the applicant for the year 2002-03 though he had given 'very good' to the applicant for the earlier years but the Reviewing Authority/ Accepting Authority had expunged the said remarks. Counsel submitted that it is out of the will and malice/personal grudge of the Reporting and Accepting Authorities, the ACRs have been downgraded. Counsel submitted that the downgrading of the ACRs have not been communicated to the applicant and therefore the Selection Committee should not have acted upon the said ACRs. Counsel pointed out that the 3rd respondent had nominated the applicant vide his letter dated 24.12.2002 for the prestigious 'National Mineral Award 2002', the highest award given by the Ministry of Mines, Government of India. It is pointed out that the 3rd respondent in the recommendation letter had highlighted the landmark achievements of the applicant. The Counsel has also relied on the Government orders and the decisions of Courts in the matter of writing confidential records and the procedure to be followed while downgrading the ACRs. He submitted that an honest and dedicated officer who had put in unstinct service for more than 19 years in the feeder category had been denied promotion only because of the whims and fancies of the Reporting/Reviewing and Accepting Authorities. He also submitted that the mala fide action of the Reporting/ Reviewing/Accepting Authorities had vitiated the entire proceedings.
7. Mr A.K. Chaudhuri, learned Addl. C.G.S.C., submitted that the applicant, on the basis of his seniority as per the seniority list, came in the zone of consideration for promotion to the post of Director, Geology, only in the year 2003-2004 and 2004-2005; that his name was proposed by the Government and considered by the DPC which was held on 10th and 11th August, 2004 but he was not found fit for selection in view of the performance reflected in his ACRs. He also submitted that the applicant was reluctant to attend field work which cannot be avoided. The Standing Counsel further submitted that the confidential and other records produced will establish the said circumstances.
8. We have minutely gone through the pleadings in the case, considered the arguments advanced by the Counsel for the parties and also perused the confidential records of the applicant, the proposal sent by the Government of India to the UPSC and the proceedings of the DPC for 2002-2003 for one post, for 2003-2004 for 53 posts and for 2004-2005 for 26 posts of Director, Geology, convened on 10th and 11 th August, 2004 and the appointment order.
9. Before we proceed to consider the real issue involved in the case we will first dispose of the contention raised by the Counsel for the applicant that no proper DPC was convened for the period from 1990-91 onwards with reference to each years vacancies and that the applicant's case was not considered for promotion to the post of Director, Geology, though , he was qualified and eligible for promotion to the said post since 1990. The applicant was promoted to the post of Geologist (Sr) in the year 1985. He had completed 6 years service in the said post in 1991. Admittedly, he was qualified for promotion to the post of Director, Geology, since 1991. The post of Director, Geology, is a selection post and promotion is based on merit-cum-seniority. The respondents have furnished the details regarding DPC for the years 1990-91 to 2004-2005 in the written statement as per which the applicant came in the zone of consideration for promotion to the post of Director, Geology, only during the years 2003-2004 and 2004-2005. Though a rejoinder was filed, the applicant was not able to rebut the same except to state that there is some vagueness. Further the applicant's juniors in the seniority list - respondent Nos. 8 to 10 were selected and promoted only in the selection for the years 2003-2004. In the above circumstances, there is no merit in the contention regarding the earlier years entitlement.
10. Now let us consider the vital issue involved in the case viz., whether the official respondents were justified in not selecting and promoting the applicant for the years 2003-2004 and 2004-2005. The respondents have clearly assigned the reasons for not selecting and promoting the applicant to the post of Director, Geology-unsatisfactory performance reflected in the confidential records. It is stated that as per the instructions of the Department of Personnel and Training dated 8.2.2002 the Bench Mark for the post is 'very good'; he was considered by the DPC alongwith other eligible officers but he was not found fit in view of the performance reflected in his confidential reports. In the additional information furnished by the respondents in the form of a note it is stated that the DPC considered five confidential records for the years 1997-98 to 2001-02 for the vacancies of the year 2003-2004 and five confidential records for the years 1998-99 to 2002-2003 for the vacancies for the year 2004-2005. The gradings given for the above years are also furnished. It is also stated that as per the criteria adopted by the UPSC, if an officer having four Confidential Reports out of five Confidential Reports up to the Bench Mark then he will be recommended for promotion to the higher grade. The applicant, it is stated, did not satisfy the above and therefore he was not recommended by the DPC for promotion to the post of Director (Geology).
11. We have perused the confidential records of the applicant for the years 1996-97 and 2004-2005, which reflects as follows:
Assessment year Remarks of Remarks of Remarks
Reporting Reviewing Assessing
Authority Authority Authority
1996-97
From 1.4.1996 to Very Good Good Good-no reason
30.9.1996 stated
From 1.1 0.1996 to Good Very Good Very Good
31.3.1997
1997-98
From 1.4. 1997 to Good Very Good Good- no reason
30.9.1997 stated
From 1.10.1997 to Good Good Good
31.3.1998
1998-99 Very Good Very Good Good (Not a
Willing Field
worker)
1999-2000
From 1.4.1999 to Very Good Very Good Good (Avoids Field
1.11.1999 works)
From 1.11.1999 to Very Good Very Good Very Good
31.3.2000
2000-2001 Very Good Very Good Blank
2001-2002 Very Good Very Good Very Good
2002-2003 Average Good Good
(Expunged)
Good
2003-2004 Good Good Good
From the above it is seen that the applicant s grading was 'Good for the first half of 1996-97 and 'Very Good' for the second half. Similarly, for the first half of the Assessment Year 1997-98, though the Reviewing Authority had graded 'Very Good', the Accepting Authority had downgraded the same to 'Good' without assigning any reason. For the Assessment Year 1998-99 both the Reporting and the Reviewing Authorities had graded 'Very Good' to the applicant; the Accepting Authority had downgraded him with 'Good' stating that the applicant is 'Not a willing Field Worker'. Likewise, for the first part of 1999-2000 though for a major part of 1999-2000 both the Reporting Authority and the Reviewing Authority had assigned 'Very Good'; the Accepting Authority downgraded the same by grading him 'Good', stating that the applicant 'Avoids Field Works'. However, for the second half, apart from the Reporting Authority and the Reviewing Authority, the Accepting Authority who is the very same officer had assigned 'Very Good'. For the year 2000-01 both the Reporting and Reviewing Authority had assigned 'Very Good', but it appears there was no Accepting Authority to grade the applicant. The reason is not known. For the years 2001-02 all the authorities have assigned 'Very Good' to the applicant, but, for the years 2002-03 and 2003-04 only 'Good' grading is given to the applicant by all the authorities. Here it must be noted for the year 2002-03 the Reporting Authority had only graded 'Average'. However, this was expunged by the higher authority by assigning 'Good'.
12. The law on the writing of Confidential Reports of an officer is well settled by the decisions of the Supreme Court, High Courts and of the Tribunals.
13. The Supreme Court in S. Ramachandra Raju v. State of Orissa 1994 Supp (3) SCC 424 : 1994(3) SLJ 95 (SC) in regard to the need to write Confidential Reports objectively, fairly and dispassionately in a constructive manner either commenting/downgrading the conduct, character, efficiency or integrity of the officer, inter alia, observed thus:
It is needless to emphasise that the career prospects of a subordinate officer/ employee largely depends upon the work and character assessment by the Reporting Officer. The latter should adopt fair, objective, dispassionate and constructive commends/comments in estimating or assessing the character, ability, integrity and responsibility displayed by the officer/employee concerned during the relevant period for the above objectives if not strictly adhered to in making an honest assessment, the prospect and career of the subordinate officer being put to great jeopardy.
14. In State Bank of India and Ors. v. Kashinath Kher and Ors. (1996) 8 SCC 262 the Supreme Court after pointing out the twofold object of writing Confidential Report viz. (i) to give an opportunity to the officer to remove deficiencies and to inculcate discipline and (ii) it seeks to serve improvement of quality and excellence and efficiency of public service, observed that the procedure should be fair and reasonable, for, the report thus written would form the basis for consideration for promotion.
15. The Supreme Court again in State of U.P. v. Jamuna Shankar Misra (1997) 2 SLR 311 (SC) (Para 7 at page 316) observed thus:
...The officer entrusted with the duty to write confidential reports, has a public responsibility and trust to write the confidential reports objectively, fairly and dispassionately while giving, as accurately as possible, the statement of facts on an overall assessment of the performance of the subordinate officer. It should be founded upon the facts or circumstances. Though sometimes, it may not be part of record, but the conduct, reputation and character acquire public knowledge or notoriety and may be within his knowledge. Before forming an opinion to be adverse, the Reporting Officers writing confidentials should share the information which is not a part of the record with the officer concerned, have the information confronted by the officer and then make it part of the record. This amounts to an opportunity given to the erring/corrupt officer to correct the errors of the judgment, conduct, behaviour, integrity or conduct/corrupt proclivity. If, despite given giving such an opportunity, the officer fails to perform the duty, correct his conduct or improve himself necessarily, the same may be recorded in the confidential reports and a copy thereof supplied to the affected officer so that he will have an opportunity to know the remarks made against him. If he feels aggrieved, it would be open to him to have it corrected by appropriate representation to the higher authorities or any appropriate judicial forum for redressel. Thereby, honesty, integrity, good conduct and efficiency get improved in the performance of public duties and standards of excellence in services constantly rises to higher levels and it becomes successful tool to manage the services with officers of integrity, honesty, efficiency and devotion.
16. An important decision rendered by the Supreme Court on this point is U.P. Jal Nigam and Ors. v. Prabhat Chandra Jain and Ors. . Paras 2 and 3 of (he said decision read thus:
2. The first respondent was downgraded at a certain point of time to which the Service Tribunal gave a correction. Before the High Court, the petitioners' plea was that downgrading entries in confidential reports cannot be termed as adverse entries so as to obligate the Nigam to communicate the same to the employee and attract a representation. This argument was turned down by the High Court, as in its view confidential reports were assets of the employee since they weigh to his advantage at the promotional and extensional stages of service. The High Court to justify its view has given an illustration that if an employee legitimately had earned an 'outstanding' report in a particular year which, in a succeeding one and without his knowledge, is reduced to the level of 'satisfactory' without any communication to him, it would certainly be adverse and affect him at one or the other stage of his career.
3. We need to explain these observations of the High Court. The Nigam has rules, where under an adverse entry is required to be communicated to the employee concerned, but not downgrading of an entry. It has been urged on behalf of the Nigam that when the nature of the entry does not reflect any adverseness that is not required to be communicated; As we view it the extreme illustration given by the High Court may reflect an adverse element compulsorily communicable, but if the graded entry is of going a step down, like falling from 'very good' to 'good' that may not ordinarily be an adverse entry since both are a positive grading. All that is required by the authority recording confidentials in the situation is to record reasons for such downgrading on the personal file of the officer concerned, and inform him of the change in the form of an advice. It the variation warranted be not permissible, then the very purpose of writing annual confidential reports would be frustrated. Having achieved an optimum level the employee on his part may slacken in his work, relaxing secure by his one-time achievement. This would be an undesirable situation. All the same the sting of adverseness must, in all events, not be reflected in such variations, as otherwise they shall be communicated as such. It may be emphasised that even a positive confidential entry in a given case can perilously be adverse and to say that an adverse entry should always be qualitatively damaging may not be true. In the instant case we have seen the service record of the first respondent. No reason for the change is mentioned. The downgrading is reflected by comparison. This cannot sustain. Having explained in this manner the case of the first respondent and the system that should prevail in the Jal Nigam, we do not find any difficulty in accepting the ultimate result arrived at by the High Court.
17. The Principal Bench of the Tribunal in O.A. No. 2894 of 2002 decided on 25.5.2004, 2005 (1) ATI 22 had considered a case where the applicant, a Junior Accounts Officer was not promoted to the grade of Accounts Officer. The Departmental Promotion Committee considered the ACRs of the preceding 5 years ranging from 1995-96 to 2000-2001. The DPC found that the applicant did not achieve the required Benchmark to make the applicant eligible for the empanelment for promotion to the next higher rank. The claim of the applicant was rejected primarily on the ground that the Benchmark for promotion to the post of Accounts Officer was 'Good' but the applicant for the relevant period had earned only 'Average' reports. The grievance of the applicant was that downgraded 'Average' report was not communicated.
18. The Principal Bench referred to a Full Bench decision of the Delhi High Court in J.S. Garg v. Union of India and Ors. 2002(65) Delhi Reported Judgments 607, which in turn has relied on the decision of the Supreme Court in Jal Nigam case (supra) and held that uncommunicated downgraded reports cannot be considered against the applicant and the same have to be ignored.
19. This Bench had also occasion to consider a similar case to which one of us (Hon'ble Administrative Member) was a party in Dr. Ajoy Roy v. Union of India and Ors. 2005(1) SLJ (CAT) 243. The applicant therein, a Divisional Medical Officer in the Railway Hospital was not considered for the Junior Administrative grade and his juniors were selected and included in the list for promotion. His representation against the same was rejected by the Railway Board by stating that taking into account all the relevant factors the DPC did not find him suitable for empanelment/promotion to Junior Administrative Grade. The applicant contended that the Board had constituted a DPC which considered the candidates on the basis of seniority and ACRs of the last five years preceding the date of selection and nothing adverse was communicated to him. The respondents in their written statement contended that the posts of Administrative grades are selection posts. Confidential rolls are the basic input on the basis of which assessment is to be made by the Selection Committee. The applicant was considered but not found suitable for empanelment for JAG taking into account all the relevant factors including his overall performance. He was not found fit on the basis of the performances as reflected in his ACRs. It is also contended that entries in the ACRs. which are considered to be adverse alone, are required to be communicated and in the absence of any such entries or remarks the question of communicating does not arise.
20. The Tribunal after perusing the ACRs of the applicant and the decisions bearing on the point observed thus:
On going through the records submitted by the respondents and selection proceedings we find that the applicant has acquired grading as 'Good', whereas the benchmark for such selection as per the circular and by the Selection Committee has been laid down as 'Very Good'. Then the question that comes is whether the ACR 'Good' is adverse or not. Learned Counsel for the applicant has taken us to a decision reported in 1996(2) SCC 363 in the case of U.P. Jal Nigam and Ors. v. Prabhat Chandra Jain and Ors., in which the Supreme Court has observed that "Confidential report- Adverse remarks' Downgrading of the entry- When can be adverse?" The gradation falling from 'Very Good' to 'Good' that may not be ordinarily an adverse entry since both are positive grading. Even a positive confidential entry can perilously be adverse and to say that an adverse entry should be quantitatively damaging may not be true and the entry 'Good' which is per se not adverse will amount to be adverse when the bench mark is being put as "Very Good'. Such a state of affairs should not be permitted. Therefore, such information should have been informed to the employee and communicated the same. To fortify the above, it is also to notice a decision of this Tribunal reported in (1996) 33 ATC 802 of the Central Administrative Tribunal, Allahabad Bench of a similar and identical case and held that "Remarks which have potential of adversely affecting an employee's career, held on facts are adverse- Such remarks have to be communicated to the employee- Grading an employee as 'Good' and 'Average' when bench-mark for promotion is 'Very Good', held, are adverse remarks which should have been communicated to the applicant." Admittedly, the same position prevails in this case and the confidential report of the applicant is 'Good' which was not communicated at any point of time to the applicant has adversely and prejudicely affected the selection of the applicant. We also find from the record that the Selection Committee which consisted of only Railway Officials without even a single member from the Medical Service has evaluated without any application of judicious mind and found the applicant unfit. On going through the entire record we could not find any cogent reason recorded except the gradation of ACR in the non-selection of the applicant. The legal position of such an entry in the ACR should have been communicated is not, admittedly, done in this case which is patent irregularity in the selection process, nor the Selection Committee make its mind applied. Therefore, we are of the considered view that the declaration that the applicant is unfit will not stand in its legs and the impugned action is to be set aside.
21. A Full Bench decision of the Ernakulam Bench of the Tribunal on 20.9.2001 in O. A. No. 1304 of 2000 also dealt with the effect of non-communication of adverse remarks in the ACR of a Government servant. Referring to the decision of the Supreme Court in Gurdial Singh Fiji v. State of Punjab and Ors. , it was observed that the position is that uncommunicated adverse remarks cannot be relied on by the DPC.
22. A decision of a Division Bench of the Central Administrative Tribunal, Allahabad Bench in Udai Krishna v. Union of India (1996) 33 ATC 802 : 1996(1) SLJ 464 (CAT--All.), is illustrative of the havoc that may be caused to Reported Officer while adverse remarks are made in his confidential reports if they are not communicated to him immediately after making such remarks.
In view of the falling moral and ethical standard and having regard to the observations made by the Hon'ble Supreme Court in the judgment referred to above the possibility of an unscrupulous officer, who does not possesses enough courage to invite open confrontation with the subordinate but, at the same time intends to settle personal score by spoiling his career prospects, by giving remarks which may not be communicable but, at the same time mar prospects of his promotion to higher grade, cannot be ruled out. The Officer becomes a victim of the bias and prejudice of such an unscrupulous Reporting Officer and will come to know of the mischief only after five years when the damage is already done. In this view of the matter, we are inclined to agree that a 'Good' or 'Average' grading in the ACR, though not per se adverse would assume the character of adverse remarks in the context of the requirement of 'Very Good' bench-mark to qualify for empanelment for promotion to Junior Administrative Grade and above.
The following observations in Paras 13 and 14 of the said decision applies with equal force on the facts of the present case:
"We have also noticed that the grading 'Very Good' for the period 28.6.1989 to 31.3.1990, as given by the Reporting Officer and endorsed by the Reviewing Officer has been downgraded to 'Good' by the Accepting Authority .It was argued that downgrading of the 'Very Good' remark to 'Good' by the Accepting Officer amounts to adverse remark and as such should have been communicated to the applicant before the same was taken into consideration for assessing his merit by the DPC. Since this remark has not been communicated to the applicant, taking of the said remark into consideration by the DPC, vitiates the assessment of merit as done by the DPC.
We have perused the ACR dossier of the applicant and we find that the Accepting Authority has not given sufficient reason for downgrading the remarks from 'Very Good' to 'Good'. The reason given for downgrading the remark is "The Officer is slightly overrated". The Accepting Authority was required to give the specific reason for disagreeing with the grading given by the Reporting Officer endorsed by the Reviewing Authority. The remark does not indicate the ground on the basis of which he has downgraded the remark from 'Very Good' to 'Good'. The downgrading of the remark by the Accepting Authority thus, cannot be said to based on sufficient cause. In fact, no reason while downgrading from 'Very Good' to 'Good' has been assigned. While agreeing with the view rendered by the Jabalpur Bench of the Tribunal in Mohan Gupta case" that downgrading of the remark from 'Very Good' to 'Good' without assigning any reason amounts to adverse remark, we do not consider it appropriate to order that the same should be ignored. We are of the view that the aforesaid two remarks, which according to us . are adverse in nature, should have been communicated to the applicant, and representations, if any, filed for expunction of the same, should have been disposed of before the remarks were allowed to remain in the ACR of the applicant. It is a settled principle of law that uncommunicated adverse remark cannot be used for superseding the claim of an Officer for promotion to higher grade. That being so, the assessment of the merit of the applicant by DPC on the basis of the aforesaid uncommunicated adverse remarks, is vitiated.
23. It is unnecessary for us to refer to any more decisions of Courts and Tribunals, for, the Government of India, Geological Survey of India, Kolkata itself issued a Circular No. DDG(P)/GSI/Conf/04 dated 26.2.2004 (Annexure-XIX to the application) which deals with the procedure related to writing of confidential reports and-communicating entries thereof. The procedure prescribed therein accords with the legal principles stated hereinabove. It refers to the need for evolving clear guidelines with regard to the question of communication of entries in the ACRs to the reportee in view of a large number of administrative orders and decisions of the Tribunals and Courts including the decisions of the Hon'ble Supreme Court. It is stated that there is some confusion as to what constitutes adverse remarks, whether and under what circumstances an advisory remark is to be deemed adverse and whether downgrading of a reportee's overall assessment as compared to the previous years, even where the new assessment is not adverse in itself, is to be considered as adverse and thus needs to be communicated to the reportee. It was observed that a related question which also arises is that where the overall assessment of the reportee falls below the benchmark prescribed for his promotion to the next senior grade, then should such an entry be deemed adverse or not. The circular then refers to the decision of the Supreme Court in U.P. Jal Nigam and Ors. v. Prabhat Ch. Jain and Ors. (supra) and observed that the said decision provides clear guidelines with regard to the above mentioned issues. The circular refers to the observations of the Supreme Court that "Even a positive confidential entry can perilously be adverse and to say that an adverse entry should always be qualitatively damaging may not be true" and observed thus:
Thus, the sum and substance of the above mentioned ruling appears to be that where the overall performance rating of the reportee is of a category below that given to him in the preceding year, then, after affording him the opportunity of representing against the downgrading in according with the principles of natural justice, if the downgrading is written, this decision, as well as the reasons for the same must be clearly recorded in the personal file of the reportee concerned. Needless to say, this final decision should also be communicated to the reportee as otherwise the process will not fulfill the requirement of the principle of natural justice.
The circular then states that the common position that emerges as a guideline for communication of entries in the confidential reports of the reportees is as follows:
(a). Where the overall performance rating is lower than that awarded in the preceding year, this should be treated as adverse and communicated to the reportee.
(b). Where the overall performance rating awarded to the reportee falls below the benchmark prescribed for the purpose of his next promotion, this should be treated as an adverse remark/rating and communicated to reportee.
Note : The communications as above should be effected within one month of the remark/rating being recorded.
In both the aforementioned situations, the adverse remark/rating so communicated should be disposed of in accordance with the principles of natural justice by affording the reportee reasonable opportunity to represent against the remark/ rating and thereafter informing him of the final decision taken in this regard through a reasoned, (speaking), order where the remark/rating is retained. This decision should also be recorded in the personal file of the officer also.
All Reporting Officers are requested to take note of the above mentioned position and ensure that CRs are completed strictly in accordance with these stipulations. Failure to do so, particularly by way of non-communication of adverse entries or the reasoned (speaking) orders for the retention of such entries after affording the reportee adequate opportunity for representation will vitiate the report in question. Since the reportee is like to discover the adverse comment only when he is denied his next promotion, non-compliance or inadequate compliance with the above discussed provisions is bound to lead to litigation and will necessarily reflect poorly on the probity and competence of the Reporting Officer concerned. Where such a situation comes to light, after following the prescribed process for ensuring natural justice, it shall be the duty of the reporting authority of the concerned Reporting Officer to record this in the latter's CR.
24. We will in this context like to observe that it is t he first and foremost duty of the Reporting/Reviewing/Accepting Authorities to understand that they have been called upon to perform an onerous job in public interest to make a realistic assessment of the work and conduct of the employees working under them. The said authorities, in the circumstances, must read beforehand all the relevant instructions and guidelines on the subject issued by the Government from time to time to understand the implications of the entries (especially adverse remarks) to be made by them in the reports. It is also to be noted that the object of writing the confidential reports and making entries in them is to give an opportunity to a public servant to improve excellence which is one of the primary duties enjoined under Article 51A(j) of the Constitution. It is also necessary that before forming an opinion to make adverse entries in confidential reports the Reporting/Reviewing Authorities should share the information, which is not part of the record, with the officer concerned; this amounts to an opportunity given to the erring officer to correct the errors of judgment, conduct, behaviour, integrity or corrupt proclivity and if despite giving such an opportunity the officer fails to perform the duty or correct his conduct or improve himself, necessarily the same has to be recorded in the confidential reports and a copy thereof supplied to the affected officer so that he will have an opportunity to know the remarks made against him and if he feels aggrieved, it will be open to him to have it corrected by appropriate representations to the higher authorities or any appropriate judicial forum for redressel; thereby honesty, integrity, good conduct and efficiency get improved in the performance of public duties and standards of excellence in service constantly rises to higher levels, (vide State of V.P. v. Yamuna Shankar Misra .
25. From the circular dated 26.2.2004 issued by the 3rd respondent itself it is clear that if a downgrading of the ACR is made with reference to the previous years ACR or with reference to the grading awarded by the Reporting/Reviewing Authorities there is a duty cast on such authorities to communicate the same to the applicant treating the said downgrading as adverse. Similarly, when a benchmark is prescribed for the purpose of the officer's next promotion and if the grading is below the benchmark then the same should be treated as adverse remark/rating and communicate it to the reported officer, that too within one month from the date of making such remarks. Despite this position, in the instant case we have been that the applicant was awarded 'Very Good' by the Reporting Officer for 1996-97 but the Accepting Authority had downgraded the same as 'Good' without assigning any reason. Similarly, for the first half of the Assessment Year 1997-98, though the Reviewing Authority had graded 'Very Good', the Accepting Authority had downgraded the same to 'Good' without assigning any reason. For the Assessment Year 1998-99 both the Reporting and the Reviewing Authorities had graded 'Very Good' to the applicant; the Accepting Authority had downgraded him with 'Good' stating that the applicant is 'Not a willing Field Worker'. Likewise, for the first part of 1999-2000 though for a major part of 1999-2000 both the Reporting Authority and the Reviewing Authority had assigned 'Very Good'; the Accepting Authority downgraded the same by grading him 'Good', stating that the applicant 'Avoids Field Works'. However, for the second half, apart from the Reporting Authority and the Reviewing Authority, the Accepting Authority who is the very same officer had assigned 'Very Good'. For the year 2000-01 both the Reporting and Reviewing Authorities had assigned 'Very Good', but the Accepting Authority's remarks are not given. The reason is not known. For the year 2001-02 all the authorities have assigned 'Very Good' to the applicant, but for the years 2002-03 and 2003-04 only 'Good' grading is given to the applicant by all the authorities. Here it must be noted for the year 2002-03 the Reporting Authority had only graded 'Average'. However, this was expunged by the higher authority by assigning 'Good'.
26. Thus it is clear that the authorities, namely Reporting/Reviewing/Accepting Authorities had not followed the rules regarding maintaining of ACR, particularly in the matter of communication of downgrading remarks. Here it is relevant again to advert to the circular dated 26.2.2004 issued by the 3rd respondent. The said circular refers to O.M. F.No. 35034/7/97-Estt.(D) dated 8.2.2002 issued by the D.O. P&T, Government of India. The relevant portion reads thus:
Further to the above in its O.M. F. No. 35034/7/97-Estt.(D) dated 8.02.2002 D.O.P. & T. has clarified that henceforth the suitability of a candidate for promotion by "selection" shall be determined only with reference to the relevant benchmark. C Very Good' or 'Good'), prescribed for such promotion. It has further been clarified that for promotion to the revised pay scales, (grade), of Rs. 12000-16.500/- and above, the benchmark for promotion shall be 'Very Good'. For promotion to grades below the above mentioned pay scale, (grade), including promotions from below grades to Group 'A' posts/grades/services, the benchmark for promotion shall be 'Good'. The DPC shall grade officials as being "Fit" or "Unfit" for the promotion i n question only with reference to the relevant benchmark as elucidated above and those who are graded as "Fit' shall be included in the select panel prepared by the DPC in the order of their inter-se seniority in the feeder grade. Thus, there shall be no supersession in promotion among those who are found "Fit" for the same by the DPC in terms of the aforementioned prescribed benchmark.
D.O.P. & T. O.M. No. 2201 l/7/98-Estt.(D) dated 6.10.2000 prescribes specifically that the suitability of employees for a given promotion shall be assessed on the basis of their service records, with particular rebvance to the CRs for the 5 preceding years irrespective of the qualifying service prescribed in the service/ recruitment rules.
Thus it will be seen that when an employee is being considered for promotion by selection, he is required to be found "Fit" for such promotion on the basis of his service record and CRs for the preceding 5 years. It follows that in case the overall performance rating of such an employee is below the benchmark rating for the promotion in question, then such a rating will come in the way of the employee's promotion. Thus the condition of such an entry being "perilously adverse" without necessarily being qualitatively damaging in terms of the Supreme Court's observations discussed holds true in such a case. This, in turn leads to the inescapable conclusion that where a Reporting Officer enters an overall performance rating which is lower than that of the benchmark prescribed for the reportee's next promotion in his CR, then, such an entry is an adverse entry and should be communicated to the reportee. Thereafter, the prescribed procedure for dealing with such an entry in accordance with the principles of natural justice, as discussed and detailed above, should necessarily follow in such a case.
27. From the above it is clear that the DPC has to determine the suitability of a candidate for promotion by selection only with reference to the relevant benchmark prescribed for such promotion and for promotion to the revised pay scale (grade) of Rs. 12000-16,500 and above the benchmark shall be 'Very Good'. The role of DPC is only to grade officials as being fit or unfit for the promotion in question only with reference to the relevant benchmark and those who are graded as 'fit' shall be included in the select panel prepared by the DPC in. the order of their inter se seniority in the feeder grade.
28. Now, reverting to the present case, the case of the applicant for promotion to the post of Director (Geology) in the scale of pay of Rs. 12000-16,500 was considered for the years 2003-04 and 2004-05. The ACRs, relevant for the assessment year 2003-04, according to the respondents are the years 1997-98 to 2001 -02 and for the year 2004-05 are for the period from 1998-99 to 2002-03, both inclusive. Here it must be noted that the benchmark of 'Very Good' for promotion by selection to the post of Director (Geology) in the scale of pay of Rs. 12000-16,500 was introduced for the first time only by the order of the D.O.P.&T. dated 8.2.2002. In other words, the benchmark for earlier period was only 'Good' prior to 8.2.2002 or the selection method was different. In the circumstances, so far as the years 1997-98 to 2001 -02 are concerned, it cannot be said that the gradings given to the applicant was below the benchmark, namely 'Good'. However, when down gradation is sought to be made either with reference to earlier assessment years or with reference to the remarks made by the subordinate authorities there was a duty cast on the said authorities to communicate the same to the concerned officers. This, admittedly, has not been done except in relation to the assessment year 2002-03, that too with regard to the grading ('Average') made by the Reporting Authority. Even for that year the official grading was 'Good' whereas for the earlier year, 2001-02, the grading was 'Very Good'. As held by the Courts and Tribunals, uncommunicated adverse remarks (in this case below the benchmark) cannot be acted upon by the DPC in the matter of selection of the applicant.
29. Going by the norms that prevailed upto 8.2.2002, the applicant had satisfied the benchmark, namely 'Good' for all the years concerned. If that was the criteria the applicant ought to have been selected by the DPC convened for the year 2003-04 itself. Here it must be noted that even going by the standards as fixed by the D.O. P. & T., namely 'Very Good' as the benchmark and the procedure adopted by the DPC that those who have satisfied the benchmark for four years out of five years the applicant must be held to have satisfied the said norms also for the reason that for all the years from 1997-98 to 2001-02 except for a fraction of the year 1997-98 the Reviewing Authority had assigned 'Very Good', but the Accepting Authority for one year had downgraded as 'Good' without assigning any reason and for two years had downgraded as 'Good' stating that the applicant 'is not a willing field worker'. In this context it is also relevant to note that the very same Accepting Authority who had assigned 'Good' for 1998-99 and first part of 1999-2000, had assigned 'Very Good' for the remaining part of 1999-2000. That apart, so far as the field work is concerned the correspondence would show that the applicant with medical certificates had requested the superior officers to exclude him from field work, but the said authorities initially did not agree with that. In the circumstances the observation that the applicant is not a willing field worker as a reason for downgrading the applicant for the years 1998-99 and first half of 1999-2000 does not appear to be justified. Added to these, the applicant has to his credit identification of a new alkaline complex named by him as 'Bhela-Rajna Alkaline Complex' (BRAC) in Nuapara district of Orissa.
30. The 3rd respondent who in his letter dated 24.12.2002 (Annexure-XVIII) named the applicant for the National Mineral Award for the years 2002 has observed thus:
During his 29 years of professional career, Shri S.K. Pattnaik, Geologist (Sr.) has devoted 20 years of field work in diverse terrain conditions including some tough areas of Bastar District (M.P.), Chandrapur and Gadchiroli districts of Maharashtra. He has worked in various fields of Geology such as ground water exploration, systematic geological mapping aided by tectonic, petrological and geochemical studies, mineral exploration (including geochemical surveys) for strategic metals like tungsten, gold and tin, besides base metals and refractory minerals. His track record attests to his dogged pursuit for gaining new knowledge and information in furthering economic as well as academic interests related to earth science. Besides reporting quite a few new mineral occurrences during his career, so far, he has registered some outstanding contributions as briefed below:
(ii) However, the most outstanding work of Shri Pattnaik was accomplished during 1993-2002 when he identified a new alkaline complex named by him as "Bhela-Rajna Alkaline Complex' (BRAC) in Nuapara district of Orissa and studied it quite elaborately as regards its tectonics, petrology, geochemistry and petrogenesis with specific details regarding alkaline magnetism. We has classified the hitherto unclassified basement granites associated with the complex and has elaborately supplemented the field data with adequate microscopic studies to bring out interesting rock types and their unique mineral assemblages. He has made full utilization of analytical facilities of G.S.I., and could therefore, undertake extensive exercises on REE, PGE and 20 other trace elements besides the major elements data. This work has enabled enormously to understand the crustal processes active in this part of Bastar carton in Western Orissa during Peterozonic times. He has also worked out the possible genetic links between BARC and the already known Khariar nepheline syenites and tectonic link between the two complexes and the Khariar basin. He has aptly named the most vital N-S running transcrustal fractures as Khariar lineaments and the pink basement batholith as the 'Nuapara batholith'. He has nicely correlated mantle up warping and crustal thinning processes to the evolution of the alkaline magnetism which manifests a complex history of partial melting, magma mixing and fractionation.
31. The above undisputed (undisputed we said because the respondents did not deny the averments made in Para 4.21 of the application in Para 13 of their reply) fact situation would show that the applicant was a willing Field Worker, for about 20 years he had devoted in field work in difficult terrains and made great achievement. This would clearly demonstrate that the request of the applicant for excluding him from field work was made for good and valid reasons. It is about such a man the Accepting Authority said that the applicant is not a willing field worker. For the selection year 2003-2004 the records (CR) required are for the years 1997-98 to 2001-02. If the downgrading to 'Good' by the Accepting Authority for the year 1998-99 and first part of 1999-2000 on the ground of 'not a willing field worker' is eschewed the applicant even satisfies the Benchmark fixed in 2002.
32. On a consideration of all the relevant matters we are of the view that the respondents were not justified in finding the applicant unfit based on the confidential records of the applicant for the years 2003-04 and 2004-2005.
33. Though the applicant has relied on a large number of decisions of different Benches of the Central Administrative Tribunal and also decisions of the High Courts and the Supreme Court, in the light of the discussions made hereinabove, we do not think it necessary to deal with all those decisions relied on by the applicant.
34. In the circumstances the respondents are directed to convene a Review DPC for selection to the post of Director (Geology) and consider the case of the applicant in the light of the observations made hereinabove and pass appropriate orders in the matter within a period of three months from the date of receipt of the order.
The application is allowed as above. No order as to costs. [19/05]