Gauhati High Court
Sheo Balak Singh vs The Union Of India & 9 Ors on 12 August, 2015
Author: Ujjal Bhuyan
Bench: Ujjal Bhuyan
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND
ARUNACHAL PRADESH)
WP(C) NO. 2218 Of 2013
Petitioner :
Shri Sheo Balak Singh,
Superintending Engineer (Civil),
HQ Project Udayak (GREF),
Doom Dooma (Assam).
By Advocates:
Mr. I. H. Saikia, Advocate,
Ms. S. Kanungoe, Advocate.
Respondents:
1. Union of India, Through the Secretary, Ministry of Defence, South Block, New Delhi-110011.
2. Secretary, Ministry of Road Transport & Highways, Transport Bhawan, Parliament Street, New Delhi.
3. Secretary, Ministry of Personnel, Public Grievances and Pension (Deptt. of Personnel and Training), New Delhi.
4. Secretary, Border Roads Development Board, 'B' Wing 4th Floor, Sena Bhawan, New Delhi- 110011.
5. Secretary, Union Public Service Commission, Dholpur House, Shahjahan Road, New Delhi- 110069.
6. Director General, Border Roads, Seema Sadak Bhawan, WP(C) No. 2218/2013 Page 1 of 15 Ring Road, Delhi Cantt., New Delhi- 110010.
7. Shri K K Razdan, SE (Civil), HQ CE (P) Sivalik (GREF), C/o- 56 APO.
8. UC Mehta, SE (Civil), HQ CE (P) Sampark (GREF), C/o- 56 APO.
9. Mohan Lal, SE (Civil), HQ 25 BRTF (GREF), C/o- 99 APO.
10. Shri RS Kahlon, SE (Civil), HQ CE (P) Swastik (GREF), C/o- 99 APO.
By Advocate:
Mr. S. P. Choudhury, CGC.
BEFORE
HON'BLE MR. JUSTICE UJJAL BHUYAN
Date of hearing : 04.08.2015
Date of Judgment : 12.08.2015
J U D G M E N T AND O R D E R (ORAL)
Heard Mr. I. H. Saikia, learned counsel for the petitioner and Mr. S. P. Choudhury, learned Central Govt. Counsel for the respondents.
2. Case was heard on 04.08.2015 and today is fixed for delivery of judgment.WP(C) No. 2218/2013 Page 2 of 15
3. Petitioner is serving as Superintending Engineer in the Border Roads Organization. He seeks promotion to the next higher rank of Chief Engineer.
4. Grievance of the petitioner is that he has been given gradings below the benchmark of "very good" i.e., "good" in the relevant Annual Confidential Reports (ACRs) which were communicated to him belatedly. Representation submitted by the petitioner was also disposed of very belatedly by a non-speaking order. Consequently, petitioner was not considered for promotion and instead his juniors i.e. respondent Nos. 7 to 10 have been promoted. Hence, the writ petition.
5. In the instant proceeding, petitioner seeks quashing of the ACRs for the following periods:-
(a) 01.04.2001 to 23.07.2001,
(b) 01.04.2002 to 12.12.2002,
(c) 01.04.2003 to 12.12.2003,
(d) 01.04.2005 to 31.03.2006,
(e) 01.04.2006 to 14.01.2007, and
(f) 01.04.2007 to 16.01.2008.
Petitioner also seeks quashing of the orders dated 27.09.2010 and 13.06.2012 issued by respondent No. 4 rejecting his representations seeking upgradation of his ACRs. Further prayer made is to direct the respondents to consider his case for promotion WP(C) No. 2218/2013 Page 3 of 15 to the rank of Chief Engineer by considering the gradings of the ACRs for the aforesaid period as "very good".
6. For the first three periods as well as for the last period, the Initiating Officer had graded the petitioner as "good" and for the 4th and 5th period he had graded the petitioner as "very good". At the level of the Reviewing Officer and Accepting Officer the gradings of "good" for the periods under consideration were retained. But against the gradings of "very good" given by the Initiating Officer for the 4th and 5th period under consideration, the same was downgraded at the level of Reviewing Officer to "good" which has been maintained.
7. Petitioner has furnished a statement in paragraph 22 of the writ petition indicating the dates of communication of the ACR gradings and the dates of his representations, which is extracted hereunder:-
Period of Date on which Date of Remarks
ACRs communicated representation
to the petitioner
01.04.2001 16.11.2011 28.11.2011 Communicated
to to the petitioner
23.07.2001 after 10 years
01.04.2002 16.08.2010 31.08.2010 After 8 years
to12.12.200
2
01.04.2003 16.08.2010 31.08.2010 After 7 years
to
12.12.2003
WP(C) No. 2218/2013 Page 4 of 15
01.04.2005 16.08.2010 31.08.2010 After 6 years
to
31.03.2006
01.04.2006 16.08.2010 31.08.2010 After 3 years
to
14.01.2007
01.04.2007 16.11.2011 28.11.2011 After 3 years
to
16.01.2008
8. Vide office memorandum (OM) dated 27.09.2010 issued by the Border Roads Development Board (Board), Ministry of Road Transport & Highways, Govt. of India, petitioner was informed that his representation against the ACRs for the 2nd to 5th periods were considered but nothing exemplary was found during the said period;
hence the representations were rejected by the competent authority. By the order dated 13.06.2012, representations of the petitioner against ACR gradings for the 1st and 6th periods were rejected by the competent authority though for the subsequent period from 01.04.2008 to 31.03.2009, grading of the petitioner was upgraded from "average" to "very good". An adverse remark recorded in the ACR for subsequent period was also expunged.
9. Department of Personnel and Training (DOPT), Ministry of Personnel, Public Grievances and Pensions, Govt. of India had issued OM dated 06.01.2010 wherein the DOPT had clarified that in those cases where the authorities had upgraded/downgraded the WP(C) No. 2218/2013 Page 5 of 15 overall grading without giving sufficient reasons, the Departmental Promotion Committee (DPC) should treat such an exercise as non- est/invalid. Detailed guidelines dated 12.04.2010 have been issued by the Border Roads Organization (BRO)/General Reserve Engineer Force (GREF) regarding filling up of new Annual Performance Assessment Reports (APARs). It may be mentioned that in the BRO/GREF, ACRs are now known as APARs. As per Clause 13, any grading below benchmark has to be adequately justified by citing specific failures and similarly overall grading meeting the benchmark or above should also have adequate justification. As per Clause 16, it is obligatory on the part of the Initiating Officer to bring out strong and weak points of the Ratee Officer. Initiating Officer/Reviewing Officer should ensure that if adverse/remedial remarks are recorded, those can be amply substantiated by them when represented by the Ratee Officers. Clauses 17, 18 & 19 provides for time limit for making entries in the APARs by the Initiating Officer, Reviewing Officer and by the Accepting Officer. Failure to maintain the time limit would result in forfeiture of the right to enter any remark in the APAR of the Ratee Officer. As per Clause 20, it is mandatory for the Reviewing Officer to assess the Ratee Officer in all qualities as mentioned in the APAR form with numerical grade. These should be on a scale of 1 to 10, where 1 refers to the lowest grade and 10 to the highest. Clause 21 provides WP(C) No. 2218/2013 Page 6 of 15 that a very cautious approach is required to be adopted while awarding grades to the Ratee Officer. Any grading below benchmark has to be adequately justified by citing specific failures. Clause 23 provides that for promotion to posts carrying a grade pay of Rs.7600/- and above, the benchmark is "very good" whereas for promotion to posts carrying a grade pay of Rs. 6600/- and below, the benchmark is "good". As per Clause 34, entries in the APARs are required to be communicated promptly to the Ratee Officers. Clause 35 says that every Government servant should know what his defects are and how he could remove them. It is the duty of the Initiating/Reviewing/Accepting Officers to make objective assessment of the Ratee Officer's work and qualities so that he can improve his performance in future and at the same time remove his short comings. Counselling of Ratee officers is also provided.
10. It is the admitted position that in the case of promotion from Superintending Engineer to Chief Engineer, the benchmark is "very good" in the ACRs of the preceeding 5 years.
11. Respondents in their common counter affidavit has taken the stand that the DOPT guidelines are prospective in nature and cannot be given retrospective effect. The DOPT guidelines have been issued following decision of the Apex Court in Dev Dutt Vs Union of India reported in (2008) 8 SCC 725. The periods under WP(C) No. 2218/2013 Page 7 of 15 consideration in the case of the petitioner are prior to the decision in Dev Dutt (supra) or the DOPT guidelines. However, following the aforesaid guidelines, APARs for the subsequent periods were communicated to the petitioner and his representations were also considered thereafter. Further stand taken is that petitioner had been rightly assessed and gradings given accordingly and therefore no interference is called for in the gradings given.
12. The object of confidential reporting (ACRs) have been succinctly gone into by this Court in a recent decision in Bharat Singh Panwar Vs Union of India & Ors reported in (2013) 1 GLR
320. This Court has held that preparation and maintenance of confidential report of a Government servant is a means to an end and not an end in itself. Ultimate objective is to optimize the performance level of the Government servant. This is possible only when the short-comings as well as the good qualities of a Government servant are brought to his notice when periodical assessments are made. The main focus of the Reporting Officer should therefore be developmental rather than judgmental. This Court has held as under:-
"8. As reflected in dossier of preparation and maintenance of confidential reports, the system of Confidential Reports on the performance of Government servants is a means to an end and not an end in itself. The ultimate goal is to optimise the achievement of Government policies and programmes. This is possible only if the Confidential Reports lead to the optimisation of the performance of the concerned Government servants. The main focus of the Reporting officer should, therefore, be developmental rather than judgmental.WP(C) No. 2218/2013 Page 8 of 15
A Confidential Report should be a true indicator of the achievement of the Government servant; it should not be a mere tool to control or discipline him.
9. The system of Confidential Reports has two principal objectives and the Reporting officer should have a very clear perception of these objectives. The first and foremost is to improve the performance of the subordinate in his present job. The second objective is to assess the potentialities of the subordinate and prepare him through appropriate feedback and guidance for future possible opportunities in service. To a great extent, the second objective is dependent on the achievement of the first.
10. It is the duty of the superior officer to give the subordinate a clear understanding of the tasks to be performed and to provide requisite resources for his performance. The subordinate is required to contribute to the best of his capacity to the qualitative and quantitative achievement of the given tasks making optimum use of the resources provided. Also, both the superior and his subordinate have to be necessarily aware of the ultimate goal of their organisation, which can be achieved only through the joint efforts of both of them. This is the basic philosophy underlying any system of Confidential Report.
11. The performance of every Government servant is assessed annually through his Confidential Report, which is an important document providing the basic and vital inputs for assessing the performance of the Government servant and for assessing his suitability for his further advancement in his career on occasion like confirmation, promotion, crossing of E.B., selection for deputation, selection for foreign assignment etc. Performance appraisal through confidential reports is a tool for human resource development in order to enable a Government servant to realise his true potential. It is not a fault finding process, but a developmental one.
12. In Annexure-3 guidelines dated 12.04.2010, it has been provided that a very cautious approach is required while awarding the grading and that any grading below the bench mark is to be adequately justified by citing specific reasons. Whatever adverse entry is made, same should be substantiated by counselling letters/warning letters or other relevant documents. It is also provided that in case of any difference of opinion, reasons for the same are required to be recorded. Emphasising the responsibility of the Accepting Authority, it has been provided that the said authority has to ensure that all the ACRs are duly initiated/reviewed within time. It also provides that adequate counselling/advise should be provided to its subordinates whose ACRs are written for overcoming the deficiencies and shortcomings."
Therefore, the expression 'Confidential Report' is a misnomer because there is nothing confidential about it. Infact, it WP(C) No. 2218/2013 Page 9 of 15 has now developed into a transparent procedure as would be seen from the succeeding paragraphs with the objective of guiding and developing the performance of the Government servant for optimum utilization of his potential.
13. The law relating to recording of Annual Confidential Reports (ACRs), has by now crystallized by a series of decisions of the Apex Court. The decision in Dev Dutt (supra) can be said to be a significant milestone in the development of this particular branch of jurisprudence. The Apex Court has held that every entry, irrespective of whether it is poor, average, good, very good or outstanding, should be communicated to the concerned Government servant within a reasonable period. Explaining the rational behind such a proposition, the Apex Court held that non- communication of such an entry may adversely affect the employee in two ways: (1) had the entry been communicated to him, he would know about the assessment of his work and conduct by his superiors, which would enable him to improve his work in future; (2) he would have an opportunity of making a representation against the entry if he feels it is unjustified and can pray for its upgradation. Thus non-communication of an entry in ACR is arbitrary and therefore violative of Article 14 of the Constitution. The Apex Court further held that when the entry is communicated to the Government servant he should have the right to make a WP(C) No. 2218/2013 Page 10 of 15 representation against such entry. Such representation should be decided by an authority higher than the one who made the entry. The representation must be decided in a fair manner and within a reasonable period. In the context of promotion, it was observed that non-communication of entries in Annual Confidential Report has civil consequences and may affect the chances of a Government servant for promotion or for availing other benefits.
14. In Abhijit Ghosh Dastidar Vs Union of India reported in (2009) 16 SCC 146 the Apex Court referred to the decision in Dev Dutt (supra) and held that non-communication of entries in the Annual Confidential Reports of a public servant has civil consequences as it may affect his chances of promotion or getting other benefits. Uncommunicated entries should not be taken into consideration for the purpose of consideration for promotion to the higher grade.
15. Again in the case of Sukhdev Singh Vs Union of India and Ors. reported in (2013) 9 SCC 573, a larger Bench of the Hon'ble Supreme Court approved the decision in Dev Dutt (supra) and also referred to the subsequent decision in Abhijit Ghosh Dastidar (supra). It was held as follows:
"In our opinion, the view taken in Dev Dutt that every entry in ACR of a public servant must be communicated to him/her within a reasonable period is legally sound and helps in achieving threefold objectives. First, the communication of every entry in the ACR to a public servant helps him/her to WP(C) No. 2218/2013 Page 11 of 15 work harder and achieve more that helps him in improving his work and give better results. Second and equally important, on being made aware of the entry in the ACR, the public servant may feel dissatisfied with the same. Communication of the entry enables him/her to make representation for upgradation of the remarks entered in the ACR. Third, communication of every entry in the ACR brings transparency in recording the remarks relating to a public servant and the system becomes more conforming to the principles of natural justice. We, accordingly, hold that every entry in ACR poor, fair, average, good or very good-must be communicated to him/her within a reasonable period."
16. At this stage, the decision in Dev Dutt (supra) may once again be referred to. In the said decision, the Hon'ble Supreme Court observed that communication of entries in the ACRs and giving opportunity to represent against them is particularly important in higher posts which are in a pyramidical structure where often the principle of elimination is followed in selection for promotion.
17. Having noticed the legal position as above, the facts of the present case may now be adverted to. It appears from the materials on record that the promotion exercise from Superintending Engineer to Chief Engineer is relatable to the year 2008-09. At that point of time the above noted ACRs were not communicated to the petitioner. All these ACRs contain adverse entries recorded against the petitioner in as much as the grade given was "good" in all the ACRs as against the benchmark of "very good". Those were communicated only in the years 2010 and 2011 after the promotion exercise was over.
WP(C) No. 2218/2013 Page 12 of 15
18. Taking into account uncommunicated ACRs of the petitioner containing adverse entries while considering his suitability for promotion was certainly in violation of the principles of natural justice completely vitiating his non-selection. Petitioner was completely in the dark about his assessment in the ACRs. There are several decisions of the Apex Court even prior to Dev Dutt (supra) which have taken a consistent stand that uncommunicated ACRs should not form the basis for consideration while making an assessment of suitability for the purpose of promotion. In that view of the matter, Court is of the unhesitant view that the Departmental Promotion Committee (DPC) had committed a fundamental error in taking into consideration the uncommunicated ACRs of the petitioner for the aforesaid period while judging the suitability of the petitioner.
19. The Apex Court had noted in Anil Katiyar Vs Union of India reported in (1997) 1 SCC 280 that DPC while judging the suitability of a candidate for promotion may not confine its assessment and follow the ACR gradings only. DPC may grade the officer as per its own assessment and not blindly follow the gradings in the ACRs. This position has been further noted in the subsequent decision of the Apex Court in M. V. Thimmaiah & Ors. Vs. UPSC reported in (2008) 2 SCC 119 by clarifying that Selection WP(C) No. 2218/2013 Page 13 of 15 Committee can make its own assessment of a candidate independent of gradings in the ACRs. In M. V. Thimmaiah (supra), reference was made to the earlier decision of the Apex Court in Ramanand Prasad Singh-Vs-Union of India reported in (1996) 4 SCC 64.
20. In the light of above, Court is of the view that matter is required to be remanded back for fresh consideration of the case of the petitioner for promotion to Chief Engineer by holding review DPC. Petitioner's case is required to be considered as of 2008-09 when his juniors were promoted to the rank of Chief Engineer. The gradings given in the above ACRs shall not be taken into account by the review DPC, who may independently assess the suitability of the petitioner consistently with the observations made above and in accordance with law.
21. Let the fresh exercise be carried out within a period of 3 (three) months from the date of receipt of a certified copy of this order and whatever be the outcome of the said exercise, the same should be communicated to the petitioner. It is however made clear that if the petitioner's claim is upheld by the review DPC, he would be entitled to the consequential benefits. WP(C) No. 2218/2013 Page 14 of 15
22. Consequently, impugned orders dated 27.09.2010 and 13.06.2012 are quashed. Further, the gradings recorded in the above ACRs shall also accordingly be expunged.
23. Writ petition is allowed to the above extent but without any order as to cost.
JUDGE Aparna WP(C) No. 2218/2013 Page 15 of 15