Anil Gupta vs State of H.P.

Dharam Chand Chaudhary, J.

CWP No. 10562 of 2012 & CMP No. 13743 of 2014.

In this matter, although it is an application filed with the prayer for hearing the main writ petition at an early date, yet keeping in view that the point in issue is covered in favour of the petitioner by the judgment of the apex Court and also in the nature of the order proposed to be passed, with the consent of the parties, the writ petition has been taken up today itself for final disposal.

The petitioner presently is working as Superintending Engineer in the Himachal Pradesh Public Works Department. The complaint is that at the time of his promotion to the post of Superintending Engineer, he has been superseded by his juniors on the basis of the recommendations made by the Departmental Promotion Committee. It has been urged that in the ACRs for the year 2007-08, 2008-09 and 2009-10 (Annexures P-4 to P-6), he has been rated as good/average. These ACRs, however, were never conveyed to him. The writ petition, therefore, has been filed with the following prayers:-

" i) For issuing a writ of Mandamus or any other appropriate writ for holding review DPC and for promoting the petitioner to the post of Superintending Engineer w.e.f. 3.8.2012 i.e. the date when his juniors were promoted as such and were placed in the panel.

ii) For directing the respondents to read the assessment of the petitioner in his ACR for the year 2007-08 (Annexure P-4) as ''Very Good'' instead of ''Good'' for all intents and purposes.

iii) For quashing the assessment of the petitioner as ''good'' given by the countersigning authority in his ACRs for 2008-09 at Annexure P-5 and for directing the respondents to read this assessment as ''very good'' for all purposes.

iv) For quashing the assessment of the petitioner as ''average given by the countersigning authority in his ACRs for 2009-10 at Annexure P-6 and for directing the respondents to read this assessment as ''very good'' for all purposes.

v) For quashing the promotion of the private respondent No. 3 as Superintending Engineer made by illegally denying this promotion to the petitioner and for quashing the DPC proceedings at Annexure P-3 dated 3.8.2012."

Respondent-State in reply to the writ petition has come forward with the version that since the petitioner was graded as ''good'' in the ACRs and assessments so made not amounts to adverse entries, there was no need to convey the ACRs for the year 2007-2008, 2008-2009 and 2009-2010. It has also been contended that his merit has been assessed as ''good'' by the Departmental Promotion Committee, therefore, has been rightly assigned the place in the selection list as per his merit. Also that the criteria being merit-cum-seniority, there is no question of supersession of the petitioner by his juniors. The law applicable to the issue, which needs adjudication in this petition, is no more res integra as the apex Court Dev Dutt Vs. Union of India (UOI) and Others, , in an identical situation, where the bench mark for promotion to the post of Superintending Engineer was ''very good'' whereas the petitioner rated as ''good'' and as according to the apex Court, in a case where under the rules the bench mark for promotion to a higher post is ''very good'', gradation of an officer in the lower grade as ''good'' in fact amounts to adverse entries, has held as follows:-

"9. In the present case the bench-mark (i.e. the essential requirement) laid down by the authorities for promotion to the post of Superintending Engineer was that the candidate should have ''very good'' entry for the last five years. Thus in this situation the ''good'' entry in fact is an adverse entry because it eliminates the candidate from being considered for promotion. Thus, nomenclature is not relevant, it is the effect which the entry is having which determines whether it is an adverse entry or not. It is thus the rigours of the entry which is important, not the phraseology. The grant of a ''good'' entry is of no satisfaction to the incumbent if it in fact makes him ineligible for promotion or has an adverse effect on his chances.

Hence, in our opinion, the ''good'' entry should have been communicated to the appellant so as to enable him to make a representation praying that the said entry for the year 1993-94 should be upgraded from ''good'' to ''very good''. Of course, after considering such a representation it was open to the authority concerned to reject the representation and confirm the ''good'' entry (though of course in a fair manner), but at least an opportunity of making such a representation should have been given to the appellant, and that would only have been possible had the appellant been communicated the ''good'' entry, which was not done in this case. Hence, we are of the opinion that the non-communication of the ''good'' entry was arbitrary and hence illegal, and the decisions relied upon by the learned counsel for the respondent are distinguishable.

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In our opinion, non-communication of entries in the Annual Confidential Report of a public servant, whether he is in civil, judicial, police or any other service (other than the military), certainly has civil consequences because it may affect his chances for promotion, or get other benefits (as already discussed above). Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution.

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We, therefore, direct that the ''good'' entry be communicated to the appellant within a period of two months from the date of receipt of the copy of this judgment. On being communicated, the appellant may make the representation, if he so chooses, against the said entry within two months thereafter and the said representation will be decided within two months thereafter. If his entry is upgraded the appellant shall be considered for promotion retrospectively by the Departmental Promotion Committee (DPC) within three months thereafter and if the appellant gets selected for promotion retrospectively, he should be given higher pension with arrears of pay and interest @ 8% per annum till the date of payment."

A larger bench of the apex Court in subsequent decision rendered in Sukhdev Singh Vs. Union of India (UOI) and Others, , while relying upon the view of the matter taken in Dev Dutt''s case supra, has held as follows:-

"8. 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 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."

In the case in hand, admittedly the entries made in ACRs of the petitioner for the reporting year 2007-08, 2008-09 and 2009-10 had not been conveyed. The perusal of Annexure P-4, the ACR for the year 2007-08 reveals that the reporting officer has rated the petitioner as ''very good'', however, the accepting authority downgraded him from ''very good'' to ''good''. Similarly, Annexure P-5, the ACR for the year 2008-09 reveals that again the reporting officer had graded the petitioner as ''very good'' however, the accepting authority downgraded him from ''very good'' to ''good''. Annexure P-6, the ACR for the year 2009-2010, reveals that the reporting officer had rated the petitioner as ''very good'' whereas the reviewing authority downgraded him from ''very good'' to ''average''. The petitioner, in view of the law laid down by the apex Court in the judgments cited supra is definitely aggrieved by the action of the respondent in not conveying the entries so recorded in his ACRs. Not only this, but the representation, Annexure P-8, he made has also not been taken into consideration nor is there any response in reply to the writ petition as to whether the representation has been considered or not. The present, therefore, is a fit case where the petitioner should be granted an opportunity to make representation to the 1st respondent against the entries in the ACRs, Annexures P-4 to P-6 with a direction to the said respondent to consider the same within a time bound manner.

Accordingly, there shall be a direction to the petitioner to make representation against the ACRs for the year 2007-08, 2008-09 and 2009-10, Annexures P-4 to P-6, within two weeks from today. There shall also be a direction to the first respondent to take decision on the representation so made within eight weeks thereafter, in accordance with law and affording an opportunity of being heard to the petitioner. In the event of the representation made by the petitioner is decided in his favour, his case shall be referred to the 2nd respondent for holding review DPC. There shall be a direction to the 2nd respondent to conduct the meeting of the review DPC within four weeks from the date of the reference to this effect received from the 1st respondent. The petitioner thereafter be promoted from the date with all consequential benefits. Against surviving grievances, if any, liberty is reserved to the petitioner to approach this Court again.

With the above observations, the writ petition is disposed of, so also the pending applications, if any.