Madhya Pradesh High Court
Hav. Gambhir Singh Chahar vs Union Of India (Uoi) And Ors. on 1 March, 2007
Equivalent citations: 2007(2)MPHT238
Author: R.S. Jha
Bench: R.S. Jha
ORDER R.S. Jha, J.
1. The petitioner has filed this petition seeking a writ in the nature of certiorari for quashing his Annual Confidential Report (for short' ACR') for the year 2001. The petitioner has also sought a writ in the nature of mandamus directing the respondents to consider the case of the petitioner for promotion on the post of Naib-Subedar ignoring the ACR for the year 2001 and to grant him promotion with effect from December, 2004/January, 2005 or April, 2006 with all consequential benefits. During the course of arguments the petitioner has restricted his relief to the grant of promotion with effect from 1-5-2006 only and has given up his claim for promotion with effect from December, 2004/January, 2005.
2. The case of the petitioner is that he was initially appointed as a Signalman on 9-3-1981. He was subsequently promoted as Naik in the year 1988 and Havildar in the 1991. The next promotion post of the petitioner is Naib-Subedar. It is submitted that when the petitioner's case was considered for promotion to the post of Naib-Subedar by the Departmental Promotion Committee which met in April, 2006, he was not found fit for promotion only due to his ACR entries of the year 2001. The petitioner submits that in the ACR's for the period 2001 to 2005 he has been awarded four marks for the period 2002 to 2005 and has been graded 'above average' but only because of his ACR of the year 2001, where he was graded as 'average', he was not found fit for promotion on the post of Naib-Subedar. The petitioner submits that as the ACR grading for the year 2001 came in the way of the petitioner's promotion, it should have been treated as an adverse entry and should have been compulsorily communicated to him and as the respondents have failed to do so, the promotion proceedings as far as it relates to the petitioner are vitiated. The petitioner further submits that even in the year 2001 the initiating officer had given high grades to the petitioner but the Reviewing Officer down graded the entries as a result of which the petitioner was deprived of his promotion, even though the same initiating and reviewing officer had given him above average grading in the previous year, Le., in the year 2000. It is submitted that as this down grading by the reviewing officer was not communicated to the petitioner it should be ignored and the petitioner should be granted promotion on the basis of the grading awarded to him by the reporting officer. As it is reiterated that he has given up his claim for being considered for promotion with effect from the year 2004-2005, I refrain from adverting to the facts and allegations of the petitioner in respect of those years and confine the adjudication of the present case to the departmental promotion proceeding which were undertaken in the year 2006.
3. Learned Counsel for the petitioner has relied upon the judgments , U.P. Jal Nigam v. Prabhat Chandra Jain 1994 MPLJ 986, Major General R.S. Taragi v. Union of India and Ors. 1993 M.P. Service Times 344, Shiva Nand Prasad v. Chief of Army Staff and Ors. the unreported judgments of this Court passed in W.P. No. 3474/1995, Subedar Babu Singh v. Union of India and Ors. decided on 1-5-1999, Writ Petition No. 282/1999, Havildar Kundan Singh Rawat v. Union of India and Ors. decided on 9-3-2006 and the judgment reported in 2000 (2) MPLJ 326, Madan Pal Singh v. Union of India and Ors. in support of his contentions.
4. The respondents have denied all the allegations made by the petitioner and have submitted that the petitioner was not awarded any adverse remark in the year 2001 making it compulsorily communicable. It is submitted by them that the Army Orders governing the recording of confidential reports specifically provide that only below average ACRs are required to be communicated. They have further stated that the petitioner's entire service record is not very good as he had been awarded certain red ink entries in the past. It is submitted that in the year 2001 the petitioner was awarded a 2 point grading, Le., 'average' which is not an adverse entry, though they have admitted that this has definitely affected his promotion in the year 2006 in Paragraph 18 of the return. The respondents have further submitted that the petitioner was duly considered for promotion in accordance with law, however as he did not fulfill the requisite criteria for promotion he was not found fit for the same and as the average ACR is not an adverse entry it was not communicated to the petitioner. The respondents have relied upon the judgments of the Supreme Court , Union of India and Anr. v. Major Bahadur Singh , Amrik Singh v. Union of India and Ors. Mil.L.J 2006 Delhi 180, BHM Rampal Singh v. Union of India and Ors. and Mil.L.J 2006 Del. 199, Col. Narendrar Singh v. Union of India and Ors. In the back drop of these facts, it is submitted that the petition filed by the petitioner is misconceived.
5. I have heard the learned Counsels appearing for the parties at length. Before I enter into the merits of the contentions raised by the learned Counsel appearing for the parties, it would be appropriate to reiterate the settled law that it is only adverse entries which arc required to be communicated to the concerned employee. Entries which are otherwise good though low in grading are not required to be communicated in the normal course. However, in the present case, the petitioner has tried to make out a case that in cases where the ACR grading is not adverse but it directly affects further chances of promotion, which is based on pre-fixed criteria, it is required to be communicated.
6. To properly appreciate the submissions of the learned Counsel appearing for the parties, it is necessary to consider the relevant guidelines governing recording of ACRs and the promotion criteria as laid down by the respondents. Army Order 7/95 that was placed before the Court at the time of hearing and which admittedly governed the recording of ACR in respect of the petitioner for the relevant year, Le., 2001, lays down that there shall be four grades namely 'Above Average' 4 marks, 'High Average' 3 marks, 'Average' 2 marks and 'Below Average' 1 mark. Paragraph 6 of this Army Order which is relevant for the purposes of the decision in the present petition is reproduced below:
6. There will be four gradings namely Above Average - 4 marks, High Average - 3 marks, Average - 2 marks and Below - 1 mark. The award of two or less marks in any of the qualities or/and in overall grading is required to be elaborated in the pen-picture both by the Initiating and Reviewing Officer.
7. A perusal of this paragraph makes it clear that the award of two or less marks in any of the qualities or/and in overall grading is required to be elaborated in the pen-picture both by the Initiating and Reviewing Officer. Paragraph 39 of the order lays down that adverse remarks, weak points or/and Below Average figurative assessment has to be communicated in writing to the concerned NCOs by the Initiating Officer. Paragraph 41 lays down that non-recommendation for further promotion in case of NCOs graded Average by the Initiating Officer or the Reviewing Officer will be justified in the pen picture while NCOs graded Above Average and High Average will invariably be recommended for promotion. Paragraph 44, which deals with variation in assessment of the Initiating Officer and the Reviewing Officer lays down that in case where the assessment of the reporting officer is at variance with that of the Reviewing Officer by a difference of more than one mark, the Reviewing Officer will elaborate the variation and endorse full justification for his assessment in the pen picture and if the assessment of the Reviewing Officer is Average/NR, i.e., not recommended for promotion, full justification for the same will have to be given by him.
8. The respondents vide their Policy letter dated 10-10-1997 have also laid down the promotion criteria in respect of the Junior Commissioned Officer and Non-Commissioned Officer, i.e., JCO & NCO, which has been filed by the petitioner as Annexure P-1. Paragraph 6 of this Policy letter lays down the criteria for promotion to the rank of Naib-Risaldar/Naib-Subedar. The relevant portion of which is reproduced below:
6. For promotion to the rank of Naib Risaldar/Naib Subedar.
(a) Only last five reports will be considered, out of which minimum three reports must be in the rank of Hav and in case of shortfall rest may be in the rank of Nk.
(b) At least three out of last five reports should be "Above Average" with a minimum of two in the rank of Dfr/Hav and remaining should be not less than 'High Average'.
(c) *** *** *** *** ***
(d) The individual should have been recommended for promotion in all the five reports.
9. From a perusal of the above, it is manifest that a person can only be promoted on the post of Naib-Subedar, if he has been awarded at least three 'Above Average' ACRs and not less than 'High Average' ACRs in the last five reports and has been recommended for promotion in all the five reports. The ACR criteria have subsequently been amended on 10-8-2004 with effect from 2002 from a four points system to a nine points system and it is on the basis of these revised criteria that the petitioner's ACRs have been considered.
10. The petitioner's service record for the years 2001 to 2005 when considered in the back drop of the above mentioned Army Orders and Policy decision, is as under:
Recommendation DPC
Points for promotion
IO RO R/NR
2001 3 2 R Sep. 2001
2002 9 (4 old) 8 R
2003 8 (3 old) 8 R Jan. 2003
2004 8 (3 old) 8 R Jan. 2004
S'Course Dec. 2005
DPC
2005 8 (3 old) 8 R Apr. 2006
11. From a perusal of the record of the petitioner, it is apparent that the petitioner has been awarded 8 points, i.e., 'Above Average' in the years 2002 to 2005 but has been given only a 2 points grading in the year 2001 as per old criteria, i.e., 'Average'. It is also clear that in all the five years the petitioner has been recommended for promotion though in view of the two points, i.e., 'Average' grading in the year 2001 the petitioner was not eligible for promotion as per the criteria laid down by the respondents vide the Policy Letter dated 10-10-97 Annexure P-1. Though, as per the respondents the grading was 'Average' and not adverse and therefore not communicated, a perusal of the petitioner's records along with the Policy decision and the ACR Guidelines clearly establishes the fact that the petitioner was not found fit for promotion on the post of Naib-Subedar only in view of the 'Average' grading given to him in the year 2001 in view of the pre-fixed criteria contained in Paragraph 6 of the promotion policy Annexure P-1. It is also pertinent to note that the respondents have recommended the petitioner for promotion in all the five years with full knowledge and awareness of the pre-determined criteria laid down in the promotion policy which lays down a minimum criteria of 'High Average' grading for promotion on the post of Naib-Subedar and it is therefore difficult to understand as to how the petitioner who was recommended for promotion could at the same time be awarded an 'Average' grading in the ACR which automatically disqualifies him for promotion as Naib-Subedar. In other words, if the petitioner was recommended for promotion, the respondents who were fully aware of the pre-determined promotion criteria were bound to give him a grading which was above 'Average', i.e., either 'High' or 'Above Average' as per the requirement of the promotion policy, as an 'average' ACR automatically disqualifies a person for promotion on the post of Naib-Subedar. As far as the petitioner is concerned, even if the ACR guidelines simplicitor do not stipulate that an average ACR would be treated as adverse and is required to be communicated, yet, in the present circumstances, an 'Average' grading becomes compulsorily communicable, specifically in case of promotion on the post of Naib-Subedar, and also makes it incumbent upon the respondents to give the petitioner a due and proper opportunity to represent against it and seek its expunction. It is pertinent to note that the learned Counsels appearing for the parties have produced the revised ACR guidelines issued vide Army Order 1/2002/MP wherein as per Para 44, an 'Average' assessment has been made communicable in cases of JCOs/NCOs, like the petitioner, as they adversely effect chances of promotion on these posts, though it is stated by the learned Counsel appearing for the parties that these amended criteria would not apply to the ACRs recorded in the year 2001. In the circumstances, it is clear that the petitioner's promotion prospects as Naib-Subedar were adversely effected by the Average grading given to him for the year 2001 and therefore as per the promotion criteria, a Below 'High Average' ACR grading has to be treated as adverse in cases of promotion on the post of Naib-Subedar, in as much as it disqualifies a person for promotion on the post of Naib-Subedar.
12. In the case of 1993 MP Service Times 344, Shiva Nand Prasad (supra), a Division Bench of this Court in similar case relating to promotion on the post of Naib-Subedar where the grading was changed from 'Above Average' to 'High Average' adversely affecting chances of promotion of the petitioner therein, has held the down grading to be an adverse entry required to be communicated and initially directed the respondents to reconsider the case of the petitioner therein by ignoring the impugned grading and on their failure to do so ultimately directed the respondents to promote him. The relevant paragraphs of the judgment reads as under:
4. The petitioner challenged his non-promotion and the entry down grading him from the 'above average' to the 'high average' by the remarks of the reviewing officer. In M.P. No. 4066/89, by the judgment passed by us on 23-9-91, we held that where the entry results in deprivation of a chance of promotion to an officer, such an entry has to be treated as adverse, requiring giving of an opportunity to the officer concerned to show cause and represent against the same. We had before us the rules regulating maintenance of annual confidential reports, it was argued before us that the entry of 'high average' is not an adverse entry under the ACR rules and there did not exist any provision of communicating such entry. In spite of such rules for maintaining ACRs, we held that where the entry takes away the case of an officer out of consideration for promotion and renders him unfit, such as entry must be treated as adverse necessitating its communication and opportunity of representation against the same.
The same view was reiterated by this Court in W.P. No. 3474/1995, Subeda Babu Singh (supra), decided on 1-5-1999 and W.P. No. 282/99, HavildarKundan Singh Rawat (supra), decided on 9-3-2006. Learned Counsel for the petitioner has also relied upon the judgment of the Apex Court in the case of Gurdial Singh v. State of Punjab and Kishanlal Patle v. Govt. of M.P. and Ors. 2007 (1) M.P.H.T. 21, in support of the contention that uncommunicated adverse entries have to be ignored while reconsidering the case of the concerned employee. In Para 17 of the judgment in the case of Gurdial Singh (supra), it has been held as under:
17. The principle is well-settled that in accordance with the rules of natural justice, an adverse report in confidential roll cannot be acted upon to deny promotional opportunities unless it is communicated to the person concerned so that he has an opportunity to improve his work and conduct or to explain the circumstances leading to the report. Such an opportunity is not an empty formality, its object, partially, being to enable the superior authorities to decide on a consideration of the explanation offered by the person concerned, whether the adverse report is justified.
13. At this stage, it is relevant to consider the authorities cited by the learned Counsel for the respondents as well as the petitioner in respect of communication of entries which are not otherwise adverse. The learned Counsel for the petitioner has relied upon the judgment of the Apex Court , U.P. Jal Nigam (supra), to submit that the Apex Court as a general rule has laid down that all ACRs entries which adversely affect the promotion or service prospects of an employee in any way have to be communicated and should also record the same in the service record of the concerned person. The respondents on the other hand have relied upon the later judgment of the Supreme Court in the case Major Bahadur Singh (supra) to submit that subsequently the Apex Court has distinguished the judgment rendered in the case of U.P. Jal Nigam (supra) and has clarified that the said judgment has no universal application but was confined only to the employees of U.P. Jal Nigam. It is also submitted that in the said judgment which also related to promotion in the Army a low ACR grading which was otherwise not adverse, recorded as prescribed by the guidelines for recording ACRs, was held not to be necessarily communicable even if it ultimately resulted in non-promotion of the employee. The learned Counsel for the respondents has also relied upon the judgment in the case of (2001) 10 SCC 424, Amrik Singh (supra), wherein even a single adverse entry in the ACR in an otherwise unblemished service record was held to be sufficient to deny the petitioner promotion therein.
14. From a perusal of the judgment in the case of Major Bahadur Singh (supra), it is clearly established that the said case dealt with promotion from the post of Major to the post of Lt. Colonel for which no pre-determined eligibility or promotion criteria was pre-fixed or laid down by any Army Orders or promotion policy as in the present case. This is a pre-determined criteria which is prevalent in the respondent establishment and each and every initiating officer and reviewing officer has full knowledge of the fact that an 'average' ACR grading would clearly debar and adversely affect the promotions of the Havildar to the post of Naib-Subedar for the next 5 years and therefore, an average grading in the ACR is practically like an adverse entry in the service record as far as promotions for the post of Naib-Subedar are concerned. It is also clear that such a criteria is not prescribed for the post of Major and other Army Officers like the one involved in the case of Major Bahadur Singh (supra). In the circumstances, the law laid down by the Apex Court in the case of Major Bahadur Singh (supra), does not apply to the present case which deals with promotion from the post of Havildar to Naib-Subedar and for which a specific pre-determined promotion criteria has been laid down by the promotion policy dated 10-10-97 Annexure P-1. For the same reasons the judgment , Amrik Singh (supra) has no applicability to the present case. The reliance placed by the Counsel for the respondents on the judgment in the case of BHM Rampal Singh (supra) is also misplaced in asmuchas the facts of that case were totally different, wherein the Reviewing Officer had given a clear and specific note in the ACRs while down grading which is not the case of the present petition. Similarly the ratio of the judgment in the case of Col Narendra Singh (supra) is also not applicable to the present case as in that case promotions from the post of Colonel to the post of Brigadier was involved in respect of which the specific promotion criteria as prescribed for promotion for the post of Naib-Subedar in the present case was not prescribed.
15. In view of the above, I am of the considered opinion that in view of the clear stipulation and requirement of the promotion policy which is pre-determined and known to all concerned in advance that a person can be considered for promotion on the post of Naib-Subedar only if he has atleast three 'above average' gradings and all grades above 'high average' in the preceding five years, the award of an 'average' grading to the petitioner in the year 2001 has to be treated as adverse and therefore compulsorily communicable and also makes it necessary on the part of the respondents to give the petitioner an opportunity to represent against it as it renders him ineligible for promotion as Naib-Subedar. It is also held that in the absence of communication of the down graded entry of the year 2001 awarded by the Reviewing Officer which resulted in depriving the petitioner of an opportunity to show-cause and to represent against the same, it could not have been considered in the DPC which met in April, 2006 for considering his case for promotion on the post of Naib-Subedar.
16. The second issue raised by the petitioner is that the down grading of the ACRs of the petitioner by the Reviewing Officer was not in accordance with Para 6 of the guidelines laid down vide Army Order 7/95 as the Reviewing Officer was required to elaborate in the pen picture as to why he was of the opinion that over all grading of the petitioner retired down grading.
17. This Court has scrutinized the service record of the petitioner which has been placed before this Court by the respondents. From a perusal of the petitioner's ACRs for the year 2001 it is apparent that the Reporting Officer had awarded a three points ACR, i.e., 'High Average' grading to the petitioner which was down graded to two points, i.e., 'Average' grading by the Reviewing Officer. In the pen picture column, the Reviewing Officer has not elaborated or stated any reason for down grading except for mentioning "an Average NCO". It is also clear from the service record of the petitioner that the same Initiating Officer had granted a three points 'High Average' grading to the petitioner in the year 2000 which had in fact been upgraded by the same Reviewing Officer to a four points, 'Above Average' grading in the year 2000. In the absence of any elaboration in the pen picture column by the Reviewing Officer, I am of the considered opinion that the down grading of the petitioner's ACR from a three points 'High Average' to a two points 'Average' grading without elaborating in the pen picture column the reasons for doing so as required by Para 6 of the Army Order is arbitrary and lacks objectivity. It is also contrary to the clear mandate of the guidelines as prescribed in Paragraph 6 of Army Order 7/95.
18. In the circumstances, the petition filed by the petitioner deserves to be and is hereby allowed with a direction to the respondents to reconsider the case of promotion of the petitioner as on April, 2006 on the post of Naib-Subedar by ignoring the down graded 'Average' ACR recorded by the Reviewing Officer and by considering the 'High Average' grading awarded by the Initiating Officer for the year 2001 and on finding him eligible he be given all the consequential benefits including consideration for extension of service in accordance with rules. The said exercise be completed by the respondents preferable within a period of two months from the date of production of a certified copy of this order passed today.
19. The petition is accordingly allowed and disposed of with the aforesaid direction. In the facts and circumstances of the case there shall be no order as to costs.