Gauhati High Court
Union Of India & 5 Ors vs Shri Sheo Balak Singh & 4 Ors on 3 August, 2017
Author: Manojit Bhuyan
Bench: Manojit Bhuyan
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM; NAGALAND; MIZORAM &
ARUNACHAL PRADESH)
WRIT APPEAL 224/2016
The Union of India & 5 Others --------- Appellants
-versus-
Sri Sheo Balak Singh --------- Respondent
BEFORE HON'BLE THE CHIEF JUSTICE MR. AJIT SINGH HON'BLE MR. JUSTICE MANOJIT BHUYAN Advocate for Appellants :: Mr. S.C. Keyal, Asst. SGI Advocate for the Respondent :: Mr. I.H. Saikia Date of Hearing :: 03.08.2017 Date of delivery of Judgment :: 03.08.2017 JUDGMENT & ORDER (M anojit Bhuyan, J)
1. The claim for promotion to the next higher rank of Chief Engineer by interfering with the gradings in the Annual Confidential Reports (ACRs) of the relevant periods was the subject matter in the related writ petition filed by the respondent herein Sri Sheo Balak Singh. At the relevant point of time, he was serving as the Superintending Engineer in the Border Roads Organization (BRO). For the purpose of promotion to the rank of Chief Engineer, the bench mark in the gradings recorded in the ACRs was required to be "Very Good". The periods under consideration and the gradings recorded by the Initiating Officer/Reviewing Officer/ Accepting Officer in the relevant ACRs are as follows:
Page 1 of 7Period Initiating Officer Reviewing Officer Accepting Officer
(a) 01.04.2001 to Good Good Good 23.07.2001
(b) 01.04.2002 Good Good Good to 12.12.2002
(c) 01.04.2003 Good Good Good to 12.12.2003
(d) 01.04.2005 Very Good Good Good to 31.03.2006
(e) 01.04.2006 Very Good Good Good to 14.01.2007
(f) 01.04.2007 Good Good Good to 16.01.2008
2. For the gradings recorded in the ACRs in (a) and (f) above, the same were communicated to the respondent vide letter dated 16.11.2011 and representations thereof was made on 28.11.2011. In respect of the gradings in the ACRs at (b), (c), (d) and (e) above, the same were communicated vide letter dated 16.08.2010 and representation thereof was made on 31.08.2010. Vide Office Memorandum dated 27.09.2010 the respondent was informed that his representation against the gradings in the ACRs for the periods at (b),
(c), (d) and (e) had been considered and nothing exemplary was found during the said periods and accordingly the representations stands rejected. By subsequent Order dated 13.06.2012, the Page 2 of 7 representations made by the respondents against the gradings in his ACR for the periods at (a) and (f) above also stood rejected, although for the subsequent period from 01.04.2008 to 31.03.2009, the grading of the respondent was upgraded from "Average" to "Very Good" by expunging the adverse remark recorded in the ACR for the said period. Aggrieved, the respondent instituted the related WP(C) 2218/2013.
3. On consideration of the facts in issue and relying upon Supreme Court decisions on the law relating to the recording of ACRs, the writ petition was allowed by remanding the matter for fresh consideration of the case of the respondent for promotion to the rank of Chief Engineer by holding review DPC. The learned Single Judge held that the respondent's case is required to be considered as of 2008-09 when his juniors were promoted to the rank of Chief Engineer. A direction was also made to the effect that gradings given in the above ACRs are not to be taken into account by the review DPC and the suitability of the respondent be independently assessed consistent with the observations made in the judgment and in accordance with law. The orders of rejection dated 27.09.2010 and 13.06.2012 were quashed and the gradings recorded in the ACRs, as mentioned above, were directed to be expunged. Aggrieved, the present appeal has been preferred by the Union of India and Others.
4. We have heard Mr. S.C. Keyal, learned Assistant SGI for the appellants and Mr. I.H. Saikia, learned counsel for the respondent/writ petitioner. We have also perused the materials placed before us.
5. There is no dispute to the fact that copies of the ACRs for the periods aforementioned were communicated to the respondent in two bunches by letters dated 16.08.2010 and 16.11.2011 respectively. The pleaded stand of the appellants is that prior to the issuance of Page 3 of 7 Office Memorandum dated 13.04.2010 there was no requirement to communicate the below benchmark gradings in the ACRs to officers concerned. The requirement came only with the said Office Memorandum dated 13.04.2010. Submission made is that in the absence of any guidelines compelling any government departments to communicate below benchmark/adverse/remedial remarks in the ACR, the below benchmark gradings in the ACRs of the respondent for the periods above were not communicated at any earlier point of time. The same were communicated on 16.08.2010 and 16.11.2011 following the instructions in the said Office Memorandum dated 13.04.2010. Submission is also made that the respondent had made representations and the same were considered and rejected. This is the primary stand which, according to the appellants, did not receive due consideration and appreciation by the learned Single Judge.
6. Testing the arguments above, it is seen from the Office Memorandum dated 06.01.2010, enclosed to the Appeal Memo, that communication of the complete ACR including the overall gradings and assessment of integrity to the officer concerned for representation was made effective from the reporting period 2008-09 vide an earlier Office Memorandum dated 14.05.2009. It is reflected in the Office Memorandum dated 06.01.2010 that the practice in vogue prior to the issuance of the Office Memorandum dated 14.05.2009 was for communicating only adverse remarks in the ACR to the officer concerned for his representation, if any. This position has also been admitted by the appellants in paragraph 5 of its affidavit-in-opposition filed in the related writ petition. To reiterate, the admitted fact is that there had been a practice of communicating only adverse remarks in the ACRs even prior to issuance of the Office Memorandum dated 14.05.2009.
Page 4 of 77. In the above context, it would now be apposite to turn our undivided attention to the case in Dev Dutt v. Union of India & Ors, reported in (2008) 8 SCC 725. The Supreme Court decided this case on 12.05.2008 and the law laid down therein have remained undisturbed until this date, rather relied upon by three Judge Bench in Abhijit Ghosh Dastidar, reported in (2009) 16 SCC 146 and in the case of Sukhdev Singh v. Union of India & Others, reported in (2013) 9 SCC 566. Turning to the case in Dev Dutt (supra), the Supreme Court was considering the Annual Confidential Report (ACR) of the appellant therein for the year 1993-1994. As the grading of the appellant for the said year was "Good" and the benchmark for consideration for promotion being "Very Good", he was not considered for promotion by the DPC held on 16.12.1994. The legal issue involved in Dev Dutt (supra) was whether the "Good" entry in the ACR, which adversely affected the appellant's promotion, ought to have been communicated to him so as to afford him opportunity of making representation against it. In this context one Office Memorandum dated 10/11.09.1987 of the Govt. of India was noticed which provided for communication of adverse entries only and not "Good" entry. The Supreme Court held that "Good" entry is in fact an adverse entry as it forecloses the chance of a candidate from being considered for promotion. It was further held that the "Good" entry adversely affecting chances of promotion should have been communicated within a reasonable period enabling the making of a representation against it. The Supreme Court clarified that every entry in the ACR of a public servant must be communicated within a reasonable period, which in its turn goes to achieve two objects, firstly, a public servant would know about the assessment of his work and conduct in the estimation of his superiors, which would enable him to improve his work in future and, secondly, he would have an opportunity of making Page 5 of 7 a representation against the entry if he feels that it is unjustified and then pray for its upgradation.
8. In the instant case the benchmark in the gradings recorded in the ACRs was required to be "Very Good". The relevant periods where gradings were recorded below benchmark level were for the periods from 01.04.2001 to 23.07.2001; 01.04.2002 to 12.12.2002; 01.04.2003 to 12.12.2003; 01.04.2005 to 31.03.2006; 01.04.2006 to 14.01.2007 and 01.04.2007 to 16.01.2008. The final grading of "Good" in all the aforesaid periods did not reach the benchmark level and as it stood to adversely affect the promotional prospect of the respondent, the same were clearly adverse entries, which ought to have been communicated to the respondent within a reasonable period. It is an admitted fact that in the promotional exercise some of the officers junior to the respondent, so impleaded as respondent nos. 7 to 10 in the writ petition, had been recommended and thereafter promoted.
9. The grading of "Good" in the ACRs for the relevant periods are clearly adverse entries in the light of the decision in Dev Dutt (supra). On the very admission of the appellants, practice in vogue prior to 2009 was for communicating adverse remarks only in the ACRs to the officers concerned for representation. In the instant case, such adverse entry gradings were communicated to the respondent in a bunch only in the year 2010 and 2011 and not within any reasonable period. In this situation, the entries "Good" so given to the respondent at a belated period should not have been taken into consideration while considering his case for promotion to the higher grade.
10. On the findings above and having regard to the law laid down in Dev Dutta (supra), we find no infirmity in the judgment under Page 6 of 7 appeal. The directions and order of the learned Single Judge stands affirmed. The present writ appeal stands accordingly dismissed, however, without any order as to costs.
JUDGE CHIEF JUSTICE
sds
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