Gauhati High Court
I. A. Khan vs Union Of India & Ors on 22 August, 2014
Author: A.K. Goswami
Bench: A.K. Goswami
Page 1
THE GAUHATI HIGH COURT
(The High Court of Assam: Nagaland: Mizoram and
Arunachal Pradesh)
Writ Petition (C) No. 2052/2012
1. Sri I.A. Khan,
Son of Mustafa Ali Khan,
I.R.L.A No.4803,
Presently working as the Second-in-Command,
128 CRPF Battalion, Noonmati Refinery Complex,
Sector-3, Guwahati,
District-Kamrup (M). - Petitioner
-Versus-
1. Union of India,
Represented by the Secretary to the Government of India,
Ministry of Home Affairs, North Block, New Delhi-110001.
2. The Director General of Police,
Central Reserve Police Force, Block No.1, CGO Complex,
Lodhi Road, New Delhi-110003
3. The Inspector General of Police, CRPF,
Bihar Sector, P.O. Ashiana Nagar, Patna, Bihar,
4. The Deputy Inspector General of Police (Personnel), CRPF,
Lodhi Road, New Delhi-110003
5. The Inspector General of Police, North Western Sector, CRPF,
Chandigarh.
- Respondents
BEFORE THE HON'BLE MR. JUSTICE A.K. GOSWAMI Advocates:
For the Petitioner : Mr. S.N. Tamuli, Advocate For Respondents : Mr. I. Hussain, Central Government Counsel Date of Hearing : 02.08.2014.
Date of Judgment : 22.08.2014
WP(C) 2052/2012
Page 2
JUDGMENT AND ORDER
By this application, under Article 226 of the Constitution of India, the petitioner has prayed for issuance of a writ of certiorari for setting aside and quashing the adverse entries in his Annual Confidential Report (for short, 'ACR'), for the years 2006-2007 and 2007-2008, and also for issuance of a writ of mandamus directing the respondent authorities to conduct a Review Departmental Promotion Committee for promoting him to the post of Second-in-Command with effect from 01.06.2010.
2. The case of the petitioner, in short, as projected in the writ petition is as follows:-
(i) At the time of filing the instant writ petition, the petitioner was working as Second-in-Command, 128th Battalion, Central Reserve Police Force (for short, 'CRPF'), at Guwahati. The petitioner was appointed as a Sub-Inspector, in the CRPF, on
03.11.1983. He was promoted to the post of Inspector, Assistant Commandant and Deputy Commandant in the year 1992, 1998 and 2005, respectively. On 04.08.2011, the petitioner was promoted to the post of Second-in-Command, which post the petitioner was holding at the time of filing the writ petition. He was due for promotion to the post of Second-in-Command in the year 2010 as the eligibility criteria for such promotion was completion of 5 years of regular service in the grade of Deputy Commandant and that the promotion is governed by the principle of "seniority cum merit". Last five years' WP(C) 2052/2012 Page 3 ACRs are considered for promotion and the benchmark for such promotion is "very good" entry in the ACR for the last three years and "good" entry for two years.
(ii) The name of the petitioner figured at Sl. No. 45, in the panel prepared for promotion to the post of Second-in-Command in the vacancy year 2010-2011, drawn up in the year 2010, and circulated by a consequential Circular dated 01.01.2010. Departmental Promotion Committee (for short, 'DPC') was constituted for promoting the officers to the post of Second-in-Command and, subsequently, a select list was prepared as per recommendation of the DPC. Based on such recommendation, promotion order was issued, on 01.06.2010, promoting as many as 43 officers to the post of Second-in-Command, including many juniors to the petitioner. However, as the name of the petitioner did not figure in the select list, he was not promoted.
(iii) Aggrieved by the non-inclusion of his name in the select list, the petitioner submitted a representation to the respondent No. 2, on 03.06.2010. As there was no response on the said representation, the petitioner submitted one more representation on 04.07.2010. Thereafter, vide letter dated 03.11.2010, the petitioner was provided with photocopies of the ACRs for the period (i) 01.04.2005 - 31.03.2006, (ii) 01.04.2006 - 31.03.2007 and (iii) 01.04.2007- 31.03.2008 and he was intimated that his ACRs had been found to be below the benchmark for promotion to the rank of Second-in-Command. By the said communication, the petitioner was also informed that he may WP(C) 2052/2012 Page 4 submit representation within a period of 15 days from the date of receipt of the said communication. The petitioner submitted a representation, on 21.12.2010, to the respondent No. 2 praying for expunction of the adverse endorsements in his ACRs and stating that the Inspector General of Police (for short, 'IGP'), Bihar Sector, who was the Accepting Officer/Superior Reviewing Officer of the ACRs of the petitioner, had downgraded the "very good" grading, given by the Reporting Officer as well as by the Reviewing Officer, without any reasons and that such downgrading in the ACRs was not communicated to the petitioner.
(iv) By a letter, dated 31.01.2011, the representation of the petitioner was rejected on the ground of the same being purportedly found devoid of merit. Aggrieved by the said order dated 31.01.2011, the petitioner preferred an appeal before the respondent No. 2 praying for expunction of the adverse entries in the ACRs for the year 2006-2007 and 2007-2008 and the said appeal also came to be rejected by an order dated 23.11.2011.
3. The stand of the respondents, broadly, as reflected in the affidavit-in-opposition, is as follows:
(i) While functioning as Assistant Commandant and O/C, CRPF, Mokamaghat, the petitioner was detailed as a Member of the Recruitment Board to carry out recruitment of CT(JD), at Katihar Centre, Bihar, during November, 2002 to June, 2003 and he committed misconduct by evaluating answers to questions bearing cut/overwriting/double marking in objective-type questions, in the WP(C) 2052/2012 Page 5 answer scripts of 9 (nine) candidates and a minor penalty proceeding, under Rule 16 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (for short, 'CCS(CCA) Rules'), was initiated against the petitioner vide Memorandum dated 06.01.2006, and the departmental proceeding was finalized by awarding censure vide order dated 01.10.2008. The DPC, convened on 31.03.2010 to draw the panel in the vacancy year 2010-2011, graded him "unfit for promotion to the Grade of Second-in-Charge" as the petitioner could not achieve the benchmark. The petitioner did not prefer any representation against the "good" grading recorded in his ACR for the year 2005-2006. It is further stated that there is no adverse entry in his ACRs for the years 2006-2007 and 2007-2008 and the "good"
grading, awarded to the petitioner, is not an adverse entry. The "good" grading, awarded to the petitioner, being not an adverse entry, was not, thus, communicated to him.
(ii) The letter, dated 01.08.2011, of the Ministry of Home Affairs, stipulates that there was no scope for further representation after a representation was decided by the competent authority and, in that view of the matter, the appeal, preferred by the petitioner against the order, dated 31.01.2011, was not maintainable. However, the same was entertained and rejected by the order dated 23.11.2011 as the aforesaid Memorandum, dated 01.08.2011, was not received till then. The existing instructions, holding the field, mandates disclosure of only adverse remark in the ACRs and that grading "good" is not an adverse remark. Below the benchmark ACR grading WP(C) 2052/2012 Page 6 for the last five years are required to be communicated to the concerned officers, in terms of the Office Memorandum dated 13.04.2010, only when the candidature of the officer is falling in the zone of consideration. However, at the relevant time, when the nomination of the petitioner for considering his candidature in the DPC was called for, the Office Memorandum dated 13.04.2010 was not in existence. The DPC was not required to be guided merely by the overall grading, but had to make its own assessment on the basis of the entries in the confidential reports. As there was a pending departmental proceeding, the possibility of its having impact on his ACRs for the year 2006-2007 and 2007-22008 cannot be ruled out.
4. A reply-affidavit is filed by the petitioner reiterating the stand taken in the writ petition and asserting that a "good" entry, in the ACR, in the context of the benchmark requirement, must be considered to be an adverse entry and respondents could not have acted upon the un-communicated ACRs adversely affecting the promotion of the petitioner.
5. A rejoinder was also filed by the respondents against the said affidavit-in-reply filed by the petitioner.
6. Heard Mr. S. N. Tamuli, learned counsel for the petitioner, as well as Mr. I. Hussain, learned Central Government counsel, appearing for the respondents.
7. Mr. Tamuli, learned counsel for the petitioner submits that the respondents had acted on un-communicated ACRs of the petitioner, containing adverse entries, and the case of the petitioner, for WP(C) 2052/2012 Page 7 promotion, was rejected by the DPC, which was convened on 31.03.2010, due to the adverse entries inasmuch as he was not having three "very good" entries in his ACRs for the last five years. Mr. Tamuli has submitted that any grading, below the benchmark, is an adverse grading, which necessarily has to be communicated. It is submitted by him that, as held by the Apex Court, in Dev Dutta v. Union of India and Others, reported in (2008) 8 SCC 725, all entries in the ACR of an employee must be communicated. The further contention of Mr. Tamuli is that the representation, dated 21.12.2010, submitted by the petitioner was rejected by the I.G.P., Bihar Sector, vide order dated 31.01.2011, who happened to be the Superior Reviewing Officer, who had downgraded the ACRs of the petitioner and, as such, such disposal of the representation cannot stand the scrutiny of law. Mr. Tamuli has further submitted that mere pendency of a departmental proceeding cannot be a ground for downgrading the ACR of the petitioner and, at any rate, such ground was also not recorded by the Superior Reviewing Officer, while downgrading the same. While downgrading the ACR from "very good" to "good", during the relevant years, no reason was assigned by the Superior Reviewing Officer, which is also in violation of the Standing Order No. 56/2001, dated 18.10.2001, which mandates that Reviewing/Superior Reviewing Officer should invariably record his reasons for such up-gradation/down-gradation of the ACR.
8. Learned counsel for the petitioner further submits that in the aforesaid backdrop, the entry "good", recorded by the Superior WP(C) 2052/2012 Page 8 Reviewing Officer for the years 2006-2007 and 2007-2008, should be quashed/expunged and, treating the ACRs for the aforesaid years as "very good", the respondents are liable to be directed to hold a Review DPC for considering the petitioner's case for promotion to the post of Second-in-Command w.e.f. 01.06.2010. Apart from placing reliance on Dev Dutta (supra), the learned counsel for the petitioner also places reliance on the decisions of the Apex Court in the cases of State of Gujarat and Another. Vs. Suryakant Chunilal Shah, reported in (1999) 1 SCC 529, Vijay Kumar v. State of Maharashtra and Another., reported in 1988 (Supp) 1 SCC 674, Abhijit Ghosh Dastidar v. Union of India and Others, reported in (2009) 16 SCC 146 and Sukhdev Singh v. Union of India and Others, reported in (2013) 9SCC
573.
9. Mr. I. Hussain, learned Central Government counsel, at the very outset, submits that the writ petition is liable to be dismissed inasmuch as the petitioner has not challenged the order dated 31.01.2011 (Annexure-8) and the order dated 23.11.2011 (Annexure-
13), passed by the Director General, CRPF. In reiteration of the stand taken in the affidavit-in-opposition, the learned Central Government counsel submits that "good" was not an adverse entry and the same was not required to be communicated. The petitioner could not achieve the benchmark and, therefore, the DPC rightly considered him unfit in the promotion exercise that was undertaken for the vacancy year 2010-2011. The petitioner had secured, during the relevant period, only two "very good" entries instead of three "very WP(C) 2052/2012 Page 9 good" entries, which is the benchmark. It is also submitted that the petitioner has not impleaded the officers, who are likely to be affected in the event of the adverse remarks being expunged and, as such, the writ petition is liable to be dismissed also on the count of non-joinder of necessary parties. He, however, concedes that in case the remarks "good" of the Superior Reviewing Officer, for the year 2006-2007 and 2007-2008, are expunged and entries for the aforesaid years are treated to be "very good", a Review DPC has to be convened for consideration of the case of the petitioner for promoting him to the post of Second-in-Command w.e.f. 06.01.2010.
10. I have heard the learned counsel for the parties and have also considered the materials on record.
11. Before coming to the merits of the case, this Court considers it necessary to deal with the objections raised by Mr. Hussain, learned Central Government counsel, regarding maintainability of the writ petition for not challenging the orders, dated 31.01.2011 and 23.11.2011, as well as for non-joinder of necessary parties.
12. So far as the first of the above submissions of Mr. Hussain is concerned, this court is of the opinion that the plea raised is too technical in nature. The core issue involved in the writ petition is as to whether the entries, "very good", recorded in the ACR of the petitioner by the Reporting Officer, could have been downgraded by the Reviewing/Superior Reviewing Officer as "good" without assigning any reason and whether such downgraded entries are adverse entries. The further question that emerges is whether WP(C) 2052/2012 Page 10 without communicating such entries to the petitioner, the same could have been taken into consideration for the purpose of promotion.
13. According to the respondents themselves, the appeal, preferred by the petitioner against the order dated 31.01.2011, was not maintainable though the order, dated 23.11.2011, was passed on such appeal inadvertently. Technicalities of the kind, as raised by Mr. Hussain, should not be allowed to come in the way in search of legal principles, when no prejudice is caused to the respondents. I am of the considered opinion that because the aforesaid orders, which are orders passed on the representation of the petitioner, are not impugned, no prejudice is caused to the respondents, theoretically, though it may have been appropriate for the petitioner to have challenged the same. Because of not impugning the said orders, in the considered opinion of this Court, the writ petitioner, in the facts and circumstances of the case, cannot be non-suited. In any case, the writ court can always mould the relief.
14. So far as the second contention of Mr. Hussain is concerned, I find no merit in the same. A necessary party is one without whom no order can be made effectively; a proper party is one in whose absence effective order can be passed but whose presence is necessary for complete and final decision on the question involved in the proceeding. The petitioner is praying for expunction of the gradings in his ACRs, which, having been taken note of by the DPC resulted in denial of promotion to the petitioner. If, indirectly, someone had benefited because of the entries recorded in the ACRs of the WP(C) 2052/2012 Page 11 petitioner, it will be too far-fetched to hold that such a person has a legitimate interest in a proceeding in which the petitioner has sought for expunction of gradings in his ACRs and for consequential re- consideration of his case for promotion.
15. In the considered opinion of the Court, such a person is not even a proper party, not to speak of being a necessary party.
16. Having regard to the prayers made, it is considered appropriate to take into account the grading, given in the ACRs of the petitioner by different authorities, i.e., Reporting Officer, Reviewing Officer and Superior Reviewing Officer, for the year 2006-2007 and 2007-008, as reflected in the affidavit of the respondents:-
Period Remarks of Remarks of Remarks of Remarks of Remarks of ADM 10 ADM RO OPS 10 OPS RO SRO 1/4/06 "Very Good" "Very Good" "Very "Very Good" "Good" by to by Sh. Vijay By Sh. G.S.L. Good" by by Sh. B.S. Sh. Pushkar 31/3/07 Kumar Saxena, Sh. Vijay Negi, DIGP, Singh, IGP, (As AC Comdt. 159 DIGP, CRPF, Kumar CRPF, B/S, CRPF in 159 Bn, CRPF. Sindri Comdt. 159 Khatkhati (Retired) Bn) (Retired) Bn. CRPF (Retired) 1/4/07 "Very Good" "Good" By "Very "Very Good" "Good" by to by Sh. Vijay Sh. Alok Raj, Good" by by Sh. B.S. Sh. Pushkar 31/3/08 Kumar IPS, DIGP, Sh. Vijay Negi, DIGP, Singh, IGP, (As AC Comdt. 159 CRPF, Patna Kumar CRPF, B/S, CRPF in 159 Bn, CRPF. Comdt. 159 Khatkhati (Retired) Bn) Bn. CRPF (Retired)
17. It is not in dispute that the benchmark for promotion of the post of Second-in-Command is that at least three "very good" entries and two "good" entries, at the minimum, should be recorded in the ACRs of preceding five years.
18. It is also not in dispute that the meeting of the DPC, for promotion to the post of Second-in-Command, for the vacancy year 2010-2011 was held on 31.03.2010 and the below-benchmark grading, WP(C) 2052/2012 Page 12 given to the petitioner for the years 2005-2006, 2006-007 and 2007- 2008 were forwarded, vide letter dated 03.11.2010, only after completion of the promotion process. A perusal of the petitioner's ACRs, for the aforesaid years, reveals that downgrading by the Superior Reviewing Officer, for the years 2006-2007 and 2007-2008, contains no reason save and except an endorsement to the effect that "administrative and operational performance and conduct of the officer is good". Similarly, in respect of administrative confidential report for the period from 01.04.2007 to 31.03.2008, the Reviewing Officer downgraded the petitioner from "very good" to "good" without any reason.
19. In the Standing Order No. 56/2001, dated 18.10.2001, issued by the Director General, CRPF, on the subject of preparation and maintenance of Annual Confidential Reports of officers, it is laid- down, at paragraph 6.16, as follows:
"6.16. The Reviewing/Superior Reviewing Officer with whom the ACR files are available should go through the assessment made by the reporting officer and also, based on his personal knowledge can suo-moto upgrade or downgrade the ACR. If necessary, he should enquire about the reasons for such sudden variation from the reporting/reviewing officers. However, the Reviewing/Superior Reviewing Officer should invariably record his reasons for such up-gradation/down- gradation of the ACR. In some cases, it has been noticed at the reviewing officer or SRO, while disagreeing with the assessment made by the initiating officer, does not give reasons for his disagreement with the comments of the reporting officer which is a must. Some of the reviewing officers and SROs WP(C) 2052/2012 Page 13 merely state that the officer reported upon has been under- rated or over-rated without giving any specific comments, which is bad in law. Various courts of law in their rulings and directions have categorically specified that in case reasons are not given, such grading should not be taken into consideration. It is, therefore, binding on all the reviewing officers/SROs that they should record specific reasons for their disagreement with a particular aspect of the report given by the reporting officer."
(Emphasis supplied.)
20. The aforesaid Standing Order demonstrates that the authorities also recognized the importance of recording of reasons for upgradation/downgradation of ACRs.
21. In Vijay Kumar (supra), The Apex Court had laid down that an un-communicated adverse report should not form the foundation to deny benefits to a government servant when similar benefits are extended to his junior.
22. In Suryakant Chunilal Shah (supra), the Apex Court observed that the purpose of adverse entries in the ACR is, primarily, to forewarn the government servant to mend his ways and to improve his performance and, therefore, it is required to be communicated so that the government servant, to whom the adverse entry is given, may have the opportunity to explain his conduct so as to show that the adverse entry was wholly uncalled for.
23. In Dev Dutt (supra), the Apex Court had held that non- communication of entries in ACRs of the public servant, whether he is in civil, judicial, police or any other service (other than military), has severe consequences, because it may affect his chances of WP(C) 2052/2012 Page 14 promotion and to get other benefits. It was further held that such non-communication would be arbitrary and, therefore, violative of Article 14 of the Constitution.
24. In Dev Dutt (supra), in the context of the subject-matter under consideration, a "good" entry was considered to be adverse, when the benchmark was a "very good" entry for the last five years preceding the DPC. In paragraph 13 of Dev Dutt (supra), the Apex Court opined as follows:
"13. In our opinion, every entry (and not merely a poor or adverse entry) relating to an employee under the State or an instrumentality of the State, whether in civil, judicial, police or other service (except the military) must be communicated to him, within a reasonable period, and it makes no difference whether there is a benchmark or not. Even if there is no benchmark, non-communication of an entry may adversely affect the employee's chances of promotion (or getting some other benefit), because when comparative merit is being considered for promotion (or some other benefit) a person having a "good" or "average" or "fair" entry certainly has less chances of being selected than a person having a "very good"
or "outstanding" entry."
25. Again, in paragraph 18 of Dev Dutt (supra), it was stated as follows:
"18. Thus, it is not only when there is a benchmark but in all cases that an entry (whether it is poor, fair, average, good or very good) must be communicated to a public servant, otherwise there is violation of the principle of fairness, which is the soul of natural justice. Even an outstanding entry should be communicated since that would boost the morale of the employee and make him work harder."
WP(C) 2052/2012 Page 15
26. In Abhijit Ghosh Dastidar (supra), the principles laid down in Dev Dutt (supra) were reiterated. On facts, it was further held that grading "good", which was below the benchmark "very good", which is prescribed for promotion, ought to have been communicated and, since it was not so communicated, the said grading should not have been taken into consideration for promotion.
27. Sukhdev Singh (supra) came to be decided by a larger Bench as, while granting leave to appeal, a two-Judge Bench of the Supreme Court had felt that there was inconsistency in the decisions of the Apex Court, in U.P. Jal Nigam and Others. v. Prabhat Chandra Jain and Others., reported in (1996) 2 SCC 363, and in Union of India and Another v. Major Bahadur Singh, reported in (2006) 1 SCC 368, and accordingly the two- Judge Bench had opined that the matter should be heard by a larger Bench. It was held that the view, that every entry in the ACR of the public servant must be communicated to him/her within a reasonable period, is legally sound. It was further held that the same achieves three-fold objectives. First, communication of every entry in the ACR to a public servant helps him to work harder and achieve more that helps him in improving his work and give better results. Second, 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 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 WP(C) 2052/2012 Page 16 relating to a public servant and the system becomes more conforming to the principles of natural justice.
28. The nomenclature of an entry or grading in the ACR is not relevant. What is important is the effect of such an entry and that is the test which will determine whether the entry is adverse or not. Thus, it is the rigors and effect of the entry, which is of paramount importance, and not the phraseology. In the instant case, the benchmark for promotion was minimum three "very good" entries and two "good" entries. The "good" is not good enough to enable the petitioner to earn promotion and, in that context, there can be not two opinions that the "good" entry, in the context of the case, is, in fact, an adverse entry.
29. It is imperative that every entry in ACR ― "poor", "fair", "average", "good", "very good", "outstanding"― must be communicated to a government servant within a reasonable period. Non-communication of an entry is arbitrary and violative of Article 14 of the Constitution.
30. The affidavit of the respondents is explicit that the DPC graded him 'unfit for promotion' as the petitioner could not achieve the benchmark grading. Non-communication of the entries, more particularly, the "good" entry deprived the petitioner of making an effective representation. Based on such un-communicated entries, the petitioner was graded unfit for promotion by the DPC. The petitioner was awarded penalty of censure vide order dated 01.10.2008, which is not within the years 2006-2007 and 2007-2008, the WP(C) 2052/2012 Page 17 period for which the ACRs are relevant. However, order dated 31.01.2011 by which the representation of the petitioner was disposed of, grading "good" given by the Superior Reviewing Officer was held to be justified because of imposition of penalty of censure. The reasoning assigned is clearly flawed. It is apparent that there was non-application of mind while disposing the representation. It begs the question as to how an event which had not seen the light of the day could have formed a basis for evaluating ACR of an employee.
31. In view of discussions above, the "good" entries in the ACRs for the years 2006-2007 and 2007-2008, are expunged and the same are directed to be treated as "very good". The respondents are directed to hold a review DPC to consider the case of the petitioner for promotion to the post of Second-in-Command w.e.f. 01.06.2010 within a period of 3 months from to-day.
32. The writ petition is allowed as indicated above. No cost.
JUDGE rk WP(C) 2052/2012 Page 18 WP(C) 2052/2012