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3. While working as Under Secretary, the Applicant was transferred to Department of Expenditure (Ministry of Finance) and posted with the Staff Inspection Unit (SIU for short). There he was placed under the 5th respondent Mr. James Thomas, Additional Director (Retd.) who was a promotee from the rank of SIU cadre who wrote his ACRs for the years 1998-1999 and 1999-2000 and reviewed by the 6th Respondent Smt. V.C. Tiwari, Director, SIU (Retd.). In Part I of the ACR form of 1998-1999, the Applicant narrated the resume of duties and studies undertaken during the year. In his self appraisal under Part II of the ACR, he pointed out the difficulties faced by him in discharge of the duties, as under:

Unavailability of a room, messenger (peon) and almirah etc. makes me dependent on a couple of team mates who are quick to extract their pound of flesh, thereby hampering my freedom to work in my independent way. During the year 2000-2001, he was placed under the control of another Reporting Officer and the 6th respondent continued to be his Reviewing Officer. During 2001-2002, he was again put under the control of the 5th Respondent. According to the Applicant, there were no ACRs for the years 2001-2002 as the 5th and 6th respondents deliberately did not write his ACR. On 12.08.2002, his appointment as Under Secretary was regularized w.e.f. 1.7.1994 and on his request he was transferred from SIU to the Ministry of Health in February, 2003. For year 2002-2003 also, there was no ACR due to withdrawal of work from him by the 5th and 6th respondents during the aforesaid period.

4. In January, 2000, the 2nd respondent invited applications to fill up the post of Joint Director in SIU on deputation basis from those who had put in five years of regular service as Under Secretary or equivalent. The Applicant also applied for the said post. However, in February 2002, the 2nd respondent appointed one Shri Nirmal Chander who was junior to him in service as Assistant and also as Section Officer but got regularized in the Defence Civilian cadre as Under Secretary, earlier than him due to the reason that Defence Civilian cadre was a small non-CSS cadre. According to the Applicant, though the 6th respondent, was aware of the aforesaid facts, yet to harass and humiliate him, he was posted under him and declined to put under a Deputy Secretary. He has therefore, made a written representation to the 6th respondent on 22.4.2002 that he was intending to submit an appeal to the President of India under Rule 23 (iv) of the CCS (CCA) Rules, 1965 against being asked to work under him. As a result, according to the Applicant, the 6th Respondent got annoyed with his aforesaid letter and started harassing and demoralizing him. He also threatened him with dire consequences if any such representations were made.

20. On merits, they have submitted that prior to the issuance of instructions dated 13.04.2010, there was no provision for communicating the below benchmark gradings in ACRs to the Govt. Servants. The case of the Applicant for promotion to the post of Deputy Secretary had been considered on the basis of available ACRs, which were reckonable for the relevant years and he was not found suitable for promotion to the post of Deputy Secretary on the basis of those available ACRs. As regards the representation of the Applicant dated 12.08.2010 was concerned, they have submitted that as per extant orders, the views of the Reporting Officer (Shri James Thomas, Jt. Director) and Reviewing Officer [Shri V.C. Tewari, Director (SIU)] were required to be called for on the points raised by the Appellant in his representation. However, both of them had already retired form service. The case was, therefore, examined based on the remarks and grading in the ACRs for the year 1998-99 and 1999-2000. It was further observed that the Reporting Officer had given detailed reasons in each of the columns of the ACRs and the Reviewing Officer had also concurred with the views of the Reporting Officer and agreed with the grading of the Reporting Officer. The remarks in the ACRs for the period 1998-99 and 1999-2000 could not accordingly be modified and/or the grading of the ACRs upgraded as there was no objective basis on which the same could be modified. Orders to this effect were issued on 16.03.2011. Further, they have submitted that after the judgment of the Honble Supreme Court in Dev Dutts case (supra), instructions were issued by the DOP&T OM, the new system of communicating the entries in the APAR shall be made applicable prospectively only with effect from the reporting period 2008-09 which is to be initiated after 01.04.2009.