Ramesh Tiwari vs Union of India

B.S. Walia, J.—Prayer in this writ petition is for setting aside the judgment of the Central Administrative Tribunal, Chandigarh Bench, Chandigarh

(hereinafter referred to as the 'Tribunal') dated 29.04.2010 in OA No. 757/JK/2008 and for granting the relief prayed for in the OA as also for

quashing the ACRs of the petitioner for the years 2000-2001, 2001-2002, 2002-2003 and 2003-2004, for directing the respondents to give

benefits of, First Assured Carrier Progression Scheme (ACP) w.e.f. 25.08.2005 in the Pay Scale of Rs. 8000-13500 (Revised Pay Scale of Rs.

9300-34800 + Grade Pay of Rs. 5400), Second ACP from 01.09.2008 in the grade of Rs. 15600-39100 + Grade Pay of Rs. 6600 (and not the

Pay Scale of Rs. 9300-34800 + Grade Pay of Rs. 5400 as had been granted by the department vide Office Order No. 23/2010 dated

06.04.2010) and for promotion to the post of Senior Marketing Officer w.e.f. 14.03.2008 as had been granted to his junior i.e. Shri S.C. Saha.

Claim of the petitioner before the Tribunal was that he was ignored for the grant of first ACP with effect from 09.08.1999, second ACP on

completion of 24 years w.e.f. 01.09.2005 besides regular promotion as Senior Marketing Officer with effect from the date the same had been

granted to his juniors vide Office Order No. 14.03.2008. The plea of the petitioner before the Tribunal was that he was fully eligible for the

aforesaid benefits and it appeared that either his case had not been considered on account of nonavailability of the ACRs or on the basis of

adverse material available with the respondents which had not been brought to his notice, particularly grading in the ACRs.

In support of his contentions, the petitioner placed reliance on the decision of the Hon'ble Supreme Court in case titled as Dev Dutt v. Union

of India & ors. reported as 2008(3) SCT 429, Abhijit Ghosh Dastidar v. Union of India & ors., as also Writ Petition No. 4003-04 of

2005 in the matter of Union of India & anr. v. Ranju Prasad decided by the Delhi High Court.

The stand of the respondents before the Tribunal was that the petitioner was considered for promotion along with other eligible Officers in the

feeder grade but was not found fit by the Departmental Promotion Committee (DPC) in view of his over all service record, that the petitioner had

failed to fulfil the benchmark, educational qualifications mandatory for grant of ACP to the grade of Senior Marketing Officer (Group-Ill) in the Pay

Scale of Rs. 8000-13500 (pre-revised), that even prior to the revision of rules, the petitioner was not possessing minimum qualification of Masters

Degree in Chemistry/Agricultural Chemistry/Dairy Chemistry/Dairying from recognised University and he only possessed the educational

qualification of B.Sc. (Chemistry) and M.Sc.(Botany), therefore, was not eligible for promotion to the post of Senior Marketing Officer (Group-

Ill), that after the amendment of the rules with effect from 25.08.2005 whereby the requisite stipulated educational qualification was exempted for

promotion of Officers holding the post of Marketing Officer (Group-Ill) with effect from the aforesaid date, the petitioner was considered for grant

of ACP under rules but was not found fit by the DPC, therefore, he had no case in his favour and could not claim parity with his juniors, who

fulfilled the prescribed benchmark for the purposes.

In the aforementioned background, on perusal of the record, the Tribunal came to the conclusion that it was a matter of record that the

petitioner had been considered by the DPC for the first and second ACP along with his juniors but was not found eligible keeping in view that his

grading for the ACRs from 2001-2004 was 'Average'. However, in the year 1999-2000, the petitioner had been graded as 'Good' therefore, by

accepting the contention of the petitioner that poor/down grading of his ACR from 'Good' to 'Average' should have been communicated to him so

as to enable him to improve himself, the Tribunal was of the view that the respondents were silent on the point as to whether the respondents had

communicated the ACRs to the petitioner or not.

The Tribunal held that the material available with the respondents to consider the case of the petitioner had been used for considering his case

for promotion behind his back and without following the principles of natural justice as well as procedure laid down by the Hon'ble Supreme Court

in Dev Dutt's case (supra) and that non conveying of the ACR's had adversely affect the petitioner's case and also resulted in the denial of an

opportunity to him to make efforts to improve his efficiency in his working.

In the aforementioned backdrop, the OA was disposed of by directing the respondents to convey the down grading of ACRs to the petitioner

for the relevant years within a period of one month from the date of receipt of copy of the order, whereupon the petitioner would be entitled to

submit a representation to the competent authority, who, on receipt thereto, would examine the case of the petitioner and would pass appropriate

orders and that if on such consideration, the petitioner's ACRs were upgraded, his case would be reconsidered for grant of the first and second

ACP and also for promotion to the post of Senior Marketing Officer (Group-Ill) by holding the review DPC within a period of three months

thereafter in view of the impending retirement of the petitioner on 31.08.2010.

In the writ petition before this Court, the stand of the petitioner is that pursuant to the directions of the Tribunal, the department conveyed the

ACRs which were down graded i.e. for the years 2000-2001, 2001-2002, 2002-2003 and 2003-2004 but he had not been conveyed the ACR

for the year 1999-2000 and that as per record, it was the admitted position that his ACR for the year 1999-2000 was 'Good'.

By referring to paragraph No. 13 of the writ petition, learned counsel for the petitioner contended that while in the ACRs for the years 2002-

2003 and 2003-2004, the Reporting Officer had graded the petitioner as 'Good' but the Reviewing Officer has downgraded the grading to

'Average' without assigning any reason and without giving any opportunity of hearing to the petitioner or for that matter issuing any notice for the

down grading; that the petitioner and similarly situated employees had to work under the supervision of the Reporting Officer who was having

direct contact with the employee and who judged the day to day working of the employee; that the Reviewing Officer had no direct contact with

the employee and if at all, had to disagree with the remarks of the Reporting Officer, he had to supervise the work of the employee and also give

reasons for the same. It was further submitted that in the instant case, the Reviewing Officer had neither come in contact with the petitioner nor had

given any counselling to him nor any reason for changing the ACR from 'Good' to 'Average'. Plea on behalf of the petitioner is that when the case

for grant of ACP and subsequently, promotion was considered by the DPC, at that time, the norms were three Good ACRs out of five ACRs and

that since the petitioner was having only one Good ACR for the year 1999-2000, therefore no ACP was granted.

It is submitted that although the petitioner was granted the benefit of first and second ACP vide Order No. 23 dated 06.04.2010 (Annexure-

G) under modified ACP Scheme recommended by the 6th Pay Commission in the Grade Pay of Rs. 4800-5400 respectively for the first and

second ACP yet he was entitled to first ACP in the grade pay of Rs. 5400 from 25.08.2005 as was granted to his junior Shri S. C. Saha in the

Pay Scale of Rs. 8000-13500 (Revised Pay Scale of Rs. 9300-34800 + Grade Pay of Rs. 5400) and second ACP w.e.f. 01.09.2008 in the pay

Scale of Rs. 15600-39100 + Grade Pay of Rs. 6600 and was also entitled for promotion w.e.f. 14.03.2008 as Sr. Marketing Officer vide

Annexure J which was given to his juniors but not to him because of the ACRs which were wrongly down graded without any reason and without

giving an opportunity of being heard.

Learned counsel for the petitioner submitted that the record clearly shows that ACRs for the years 2002-2003 and 2003-2004 had been

down graded without any reason and without adopting the procedure as laid down under law, therefore when the down grading was illegal, it

clearly meant that the petitioner had three ACRs as 'Good' out of five ACRs, therefore the petitioner was entitled for the first ACP with effect from

25.08.2005, second ACP w.e.f. 01.09.2008 has also promotion w.e.f. 14.03.2008 i.e. the date his juniors had been granted promotion. It has

further been argued that since the record was available before the Tribunal, it ought to have examined the ACRs and granted the necessary relief to

the petitioner itself since down grading of the ACRs was contrary to law and that the direction of the Tribunal to the authorities to re-examine the

matter was not possible at this belated stage because a special procedure has been provided that the Officer would personally supervise the work

and conduct of the employee which was not possible at this stage as the petitioner was on the verge of retirement and was going to retire on

31.08.2010, the Reviewing Officer of the relevant period of time had also retired and further that since the record was available before the

Tribunal, it was obligatory on the Tribunal to have restored the grading 'Good' as recorded by the Reporting Officer and to grant him relief prayed

for. Learned counsel for the respondents has not been able to controvert the factual position as has been stated by the learned counsel for the

petitioner.

We have considered the submissions made by learned counsel for the petitioner and find merit in the same. Admittedly, as per the law laid

down by the Hon'ble Supreme Court in Dev Dutt's case (Supra) as well as subsequent decision of the Hon'ble Supreme Court in case titled as

Sukhdev Singh v. Union of India & ors. reported as 2013 (9) SCC 566, it has been categorically laid down that every entry in the ACR of a

public servant, whether recorded as 'Poor', 'Fair', 'Average', 'Good', 'Very Good', or 'Outstanding' is to be communicated to the concerned

employee within a reasonable period of time and that mere communication only of adverse entry is not enough. Relevant extract i.e. paragraph No.

8 of the decision of the Hon'ble Supreme Court in Sukhdev Singh's case is reproduced as under:-

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 up-gradation 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.

As far as the plea of the petitioner that the Reporting Officer had recorded the remarks as 'Good' for the years 2002-2003 & 2003-2004 but

that the Reviewing Officer while agreeing with the said remarks had without giving any reason in respect thereto reduced the grading from 'Good'

to 'Average' we indeed find it strange that while admittedly the petitioner worked under the Reporting Officer and on the basis of the assessment of

the day to day working of the petitioner the Reporting Officer graded him as 'Good' and the Reviewing Officer agreed with such reporting but

changed the grading from 'Good' to 'Average'. In such circumstances, it belies comprehension as to on what basis the grading was reduced from

'Good' to 'Average', particularly in view of the fact that the Reviewing Officer did not have the first hand information of the working of the

petitioner. Moreover, the ACR for the year 1999-2000 was also recorded as 'Good'. It has also not been pointed out from the record by the

learned counsel for the respondents that any kind of advisory had been issued to the petitioner either by the Reporting Officer or by the Reviewing

Officer during the period in question.

The Hon'ble Supreme Court in case titled S.T. Ramesh v. State of Karnataka & anr. reported as (2007) 9 SCC 436 in paragraph No.

41 was pleased to hold that the Court has to make an assessment as to whether the remarks were merited by the officer on account of his

performance and further in paragraph No. 43 that on perusal of the entire service record of the appellant, it found that the remarks of the Reporting

Officer for the period in question were contrary to the officers consistent performance.

A perusal of the decision of the Hon'ble Supreme Court in S.T. Ramesh's case (supra) reveals that it is open to the Court to go into the

question whether the remarks made in the ACR of an Officer are warranted in the facts of the case.

In the instant case, as has been noticed by us, the Reporting Officer who had opportunity to assess the work and performance of the petitioner

on day to day basis had graded the petitioner as 'Good' for the years 2002-2004 and that although the Reviewing Officer had agreed with the

assessment of the Reporting Officer yet had reduced the grading in the ACR from 'Good' to 'Average', that too, without giving any

remarks/reasons, on the basis of which the grading was being reduced from 'Good' to 'Average'. Such an action is clearly, legally unsustainable.

Consequently, we hold that the action of the Reviewing Officer in reducing the grading from 'Good' to 'Average' that too without giving any

reason whatsoever for reducing the grading from 'Good' to 'Average' while agreeing with the 'Good' grading recorded by the Reporting Officer is

legally unsustainable. Accordingly, we quash the reduction of grading in the ACR for the years 2002-03, 2003-04 from 'Good' to 'Average' and

hold that the grading as 'Good' given by the Reporting Officer as agreed by the Reviewing Officer would be the grading which will enure in favour

of the petitioner. Resultantly, the respondents would take a fresh decision with regard to the entitlement of the petitioner for the grant of ACP as

well as promotion with effect from the due dates by taking into account the fact that the grading of the petitioner in the ACR for the years 2002-

2003 and 2003-2004 is 'Good' Needful be done within a period of two months from the date of receipt of certified copy of the order.

On fresh assessment being made and it being found that the petitioner is entitled for the grant of benefits, the same would be admissible with

effect from the date of entitlement to the same and the petitioner would be entitled to arrears on account of grant of said benefits.

The writ petition is allowed in the aforementioned terms. No order as to costs.