Kulwant Singh vs State of Punjab and Others

Tejinder Singh Dhindsa, J.—The petitioner who is serving on the post of Sub Divisional Engineer under the Punjab State Irrigation

Department, has filed the instant writ petition assailing the action of the Reviewing Officer in having down-graded his Annual confidential Report for

the year 2006-2007 from B+ (Good) to B (Average). The petitioner joined service in the respondent-Department as a Junior Engineer on

14.4.1980 and was promoted as Sub Divisional Engineer on 14.3.1996. Further promotion to the post of Executive Engineer is governed by the

Punjab Irrigation Department (Group ''A'') Service Rules, 2004 (for short ''2004 Rules''). Under the statutory Rules, appointment to the post of

Executive Engineer is 100% by way of promotion from amongst Sub Divisional Engineers having a working experience as such for a minimum

period of eight years. The criteria laid down for promotion is seniority-cum-merit. Still further, promotion to Group ''A'' and Group ''B'' services is

to be made in accordance with Rule 18 of the Punjab Civil Services (General and Common Conditions of Service) Rules, 1994 (for short ''1994

Rules''). The post of Executive Engineer is a Group ''A'' post and under Rule 18 of the 1994 Rules, for promotion to such Group ''A'' post, the

minimum benchmark required to be fulfilled has been laid down as ''Very Good'' as per instructions issued by the State Government from time to

time. The relevant instructions dated 6.9.2001 were issued by the State Government in relation to promotion to posts falling in Group ''A'' other

than the Head of Departments and it was stipulated that the Annual Confidential Reports for the last five years are to be taken into consideration

and the minimum benchmark will be at least 12 marks.

Relevant extract of the instructions dated 6.9.2001 would read as follows:

ACRs for the last 5 years are to be taken into consideration for promotion. The criteria for promotions will be as under:-

(1) The case pertaining to the promotions a Head of Departments would be decided strictly on the basis of merit-cum-seniority. The minimum

bench mark for promotion for such posts would be ''Very Good''. The marking system adopted earlier in instructions dated the 29th December,

2000 would be followed and a minimum of 15 marks would be required to be considered as Very Good. The Officer who is graded as

Outstanding would supersede the officer graded as Very good.

(2) For promotion to posts falling in Group ''A'' other than Head of Departments, the minimum bench mark will be Very Good with at least 12

marks. Amongst those meeting this criteria, there world be no supersession.

(3) In the case of promotion to post falling in Group ''B'' the minimum bench mark will be ''Good'' and there would be no supersession i.e.

Promotions would be made strictly on seniority-cum-merit.

(4) For making promotion in all the categories there should not be any adverse remarks in the ACRs under consideration.

Under the relevant instructions, the marks evaluation for Annual Confidential Reports are as follows:

It is pleaded that a Departmental Promotion Committee held its proceedings on 29.9.2010 to consider the cases of all eligible officials for

consideration for promotion to the post of Executive Engineers and in pursuance thereto vide order dated 15.11.2010, an official junior to the

petitioner in the cadre of Sub Divisional Engineers was promoted. At that stage, the petitioner filed Civil Writ Petition No. 22541 of 2010

impugning the order of promotion of the junior dated 15.11.2010 and raising a prayer for directing the respondents to consider and promote the

petitioner as Executive Engineer. During the pendency of the afore-noticed writ petition, the petitioner was supplied information under the

provisions of the Right to Information Act whereby the petitioner was informed that even though the Recording Officer had recorded his Annual

Confidential Report for the year 2006-2007 as ''B+'' (Good), but the Reviewing Authority had down-graded the Annual Confidential Report to

''B'' (Average). The petitioner was also informed that in the proceedings of the Departmental Promotion Committee held on 29.9.2010, he has

secured 11-1/2 marks only as opposed to the minimum requirement of 12 marks i.e. the benchmark prescribed under the Government instructions

dated 6.9.2001. Taking cognizance of such factual position, Civil Writ Petition No. 22541 of 2010 was dismissed by this Court vide order dated

23.8.2011 granting liberty to the petitioner to file a separate petition to challenge his Annual Confidential Report for the year 2006-2007. It is

against such factual backdrop that the instant writ petition has been filed.

Learned counsel for the petitioner has strenuously argued that at no point of time, any adverse or down-graded Annual Confidential Reports had

been communicated nor was any warning/advice issued to the petitioner in regard thereto. As per counsel, there has been a violation of the

principles of natural justice and the action of the respondent-authorities is arbitrary. Learned counsel would even refer to the Annual Confidential

Report for the year 2006-2007 which stood down-graded from ''B+'' (Good) to ''B'' (Average) and would submit that the Reviewing Authority

has not recorded any reasons to justify such action. It has been argued that on account of absence of reasons furnished by the Reviewing Authority

while down-grading a report, the same cannot sustain and in support of such contention would place reliance upon a Division Bench judgment of

this Court in Surinder Singh Vs. State of Punjab and Others .

In the joint written statement filed on behalf of respondents No. 1 to 3, the broad facts of the case have not been disputed. It has been stated

that a meeting of the Departmental Promotion Committee was held on 29.9.2010 to fill up the vacant posts of Executive Engineers. The duly

constituted Departmental Promotion Committee adjudged the suitability of 40 officers including the petitioner. A requirement to achieve a

benchmark of 12 marks on the basis of Annual Confidential Reports of the preceding five years for promotion to a Group ''A'' service as per

instructions dated 6.9.2001 issued by the Department of Personnel stands conceded. It is further stated that the petitioner could only secure 11-

1/2 marks as opposed to the required benchmark of 12 marks and as such, he was not found fit to be promoted to the post of Executive Engineer.

Still further, learned State counsel would submit that as per standing guidelines on the subject of Annual Confidential Reports issued by the

Department of Personnel, Government of Punjab, only adverse remarks are required to be communicated to the official concerned and since in the

present case, the Reviewing Authority had merely down-graded the annual Confidential Report of the petitioner for the year 2006-2007 from

''B+'' (Good) to ''B'' (Average), the same cannot be construed as an adverse report and, accordingly, was not communicated to the petitioner.

Reliance has also been placed upon a State Government circular dated 18.11.1967 appended as Annexure R3 along with the written statement to

contend that it is only the Reporting Officer who is bound to record reasons/defects in the work and conduct of the concerned employee and as

such, there is no requirement for the Reviewing Officer to record any reasons while downgrading an annual confidential report.

Learned counsel for the parties have been heard at length and the pleadings on record have been perused.

To adjudicate upon the issue at hand, it would be apposite to refer to the Annual Confidential Report of the petitioner for the year 2006-2007.

The relevant extract of the report recorded by the Reporting Officer i.e. the Executive Engineer grading the petitioner to be ''B+'' (Good) for the

period in question is in the following terms:

State the work on which the Engineer has been employed during the year. Give your opinion as to his qualification under the following heads:-

Note:- Deal fully with such evidence as is available of in inefficiency or corruption or other fax value (see Chief Secretary to govt. Punjab letter No.

2930-G-4-33340 (B-Gazette dated the 7th Sept. 1940).

Sd/-

Executive Engineer

Amritsar.

The Reviewing Authority i.e. the Superintending Engineer had down-graded the annual confidential report to ''B'' (Average) in the following

terms:

Report by Superintending Engineer

Do you consider the Engineer specially deserving of selection for promotion to the PSE-Class-I (for Assistant Engineers only) PSE-class-II (for

Temporary Engineer only).

Do you consider him to be qualified for the charge of a Division?

(for Assistant Engineer only)

Are you willing that he shall be employed in charge of Division under you control.

(for Assistant Engineer only)

He is an average SDO and comes under ''B'' average

Note:- Deal fully with such evidence as is available for inefficiency or corruption or other failing which impairs his value (See Chief Secretary to

Govt. Punjab letter no. 2933-xxxxxxxxxxxx 33349-H (gazetted) dated the 7th Sept. 1940).

Dated: 198

Sd/-

Superintending Engineer

U.B.D.C. Amritsar.

A perusal of the down-graded Annual Confidential Report would make it apparent that the Reviewing Officer has not assigned any reasons.

The Reviewing Officer has also not referred to any material that may have escaped the notice of the Reporting Officer nor has he referred to any

such material that may not have been considered by the Reporting Officer in the correct perspective while recording the Annual Confidential

Report so as to justify the action of down-grading the same. Further more, the fact as regards the petitioner having not been informed regarding the

down-gradation from ''B+'' (Good) to ''B'' (Average) in the form of an advice stands conceded.

I am of the considered view that the down-graded Annual Confidential Report of the petitioner for the year 2006-2007 cannot sustain on two

counts:

Firstly, such down-graded report was never brought to the notice of the petitioner. Even though, the Reviewing Officer has assessed the

petitioner to be ''B'' (Average) and the same, on the face of it, cannot be termed as adverse, but it is not the nomenclature that would be relevant.

It is the effect which such down-graded Annual Confidential Report has, would in turn determine as to whether it is an adverse entry or not. In

other words, it is the rigors of the entry which is important and not the phraseology. In the facts of the present case, the down-graded report for

the period in question i.e. 2006-2007 from ''B+'' (Good) to ''B'' (Average) has worked to the clear detriment and prejudice of the petitioner

inasmuch as on account of such down-gradation, he has failed to secure the benchmark of 12 which he otherwise would have secured and thereby

has been denied the benefit of promotion to the post of Executive Engineer. As such, even such down-graded report i.e. ''B'' (Average) would be

seen as adverse insofar as the service career of the petitioner is concerned and the same was required to be communicated to him. To such extent,

there has been a complete negation of the principles of natural justice. A reference in this regard may be made to the judgment of the Hon''ble

Supreme Court in Dev Dutt Vs. Union of India (UOI) and Others,

In Dev Dutt''s case (supra), the Hon''ble Supreme Court has held to the extent that any such Rules/Government orders/office memoranda in

respect of services under the State, whether Civil, Judicial, Police or other services, (except the Military) which if interpreted to mean that only

adverse entries are to be communicated to the concerned employee and not the other entries would be liable to be ignored.

Secondly, it was obligatory for the Reviewing Officer to have recorded reasons for down-grading the Annual Confidential Report of the

petitioner and also to have informed him of such change, be it in the form of an advice. The Reviewing Officer, admittedly, has failed to discharge

such obligation. In this context, the following observations of the Hon''ble Supreme Court in U.P. Jal Nigam and others Vs. Prabhat Chandra Jain

and others, would be relevant:

As we view it the extreme illustration given by the High Court may reflect an adverse element compulsorily communicate, but if the graded entry is

of going a step down, like falling from ''very good'' to ''good'' that may not ordinarily been adverse entry since both are a positive grading. All what

is required by the Authority recording confidentially in the situation is to record reasons for such downgrading on the personal file of the officer

concerned, and inform him of the change in the form of an advice. If the variation warranted be not permissible, then the very purpose of writing

annual confidential reports would be frustrated. Having achieved an optimum level the employee on his part may slacken in his work, relaxing

secure by his one time achievement. This would be an undesirable situation. All the same the sting of adverseness must, in all events, be not

reflected in such variations, as otherwise they shall be communicated as such. It may be emphasised that even a positive confidential entry in a

given case can perilously be adverse and to say that an adverse entry should always be qualitatively damaging may not be true. In the instant case

we have seen the service record of the first respondent. No reason for the change is mentioned. The down grading is reflected by comparison. This

cannot sustain.

Such dictum of law was even followed by a Division Bench of this Court in Surinder Singh Vs. State of Punjab and Others .

The reliance placed by learned counsel appearing for the State upon the circular dated 18.11.1967, Annexure R3, is wholly misplaced. Such

circular only contained advice insofar as the Reporting Officers to bring to the notice of the employee concerned, the slight defects verbally in the

shape of advice and guidance and to mention the same in the Annual Confidential Reports only if inspite of bringing to the notice of the concerned

employee, the same defect still persists. Such circular further enjoined upon the Reporting Officer to indicate in the Annual Confidential Report as

to what efforts were made by way of guidance, admonition etc. to get the defects removed insofar as the concerned employee was concerned and

with what results. Such circular certainly cannot read in a manner to discharge the Reviewing Officer from his obligation to record reasons which

would otherwise form the basis of down-grading the Annual Confidential Report.

For the reasons recorded above, writ petition is allowed. The down-grading of the Annual Confidential Report of the petitioner for the year

2006-2007 from ''B+'' (Good) to ''B'' (Average) at Annexure P4 is set aside. Consequentially, the petitioner is also held entitled to consideration

for promotion to the post of Executive Engineer with effect from the date his junior was promoted in terms of considering his Annual Confidential

Report for the period 2006-2007 to be ''B+'' (Good). Petition allowed in the aforesaid terms.