UNION OF INDIA AND ORS versus G.R. MEGHWAL on 23 September 2022

UNION OF INDIA AND ORS.

v.

G.R. MEGHWAL

(Civil Appeal No. 2021 of 2022)

SEPTEMBER 23, 2022

[M. R. SHAH AND B. V. NAGARATHNA, JJ.]

Service Law: Promotion – Suitability for grant of SeniorAdministrative Grade – Assessment of Annual Confidential Report(ACR) – Deputy General Manager, BSNL of Indian Telecom GroupA cadre, graded “Very Good” for the years 2005-2006 and 2006-2007, however, only ‘Good’ for the year 2007-2008 – Officer wascommunicated the same – He submitted his representation but thesame was rejected – Thereafter, in Departmental PromotionCommittee (DPC) held for grant of Non Functional-upgradation inSAG, the officer was not found eligible on the ground that in theyear 2007-2008, his ACR was “Good” – Challenge to, by the officer– Tribunal set aside the rejection of the representation and directedto review the case of the respondent ignoring the below benchmark“Good” for the year 2007- 2008 – Said order upheld by the HighCourt – On appeal, held: Though the officer was graded as “VeryGood” in the ACRs for the years 2005-2006 and 2006- 2007, andwas graded only “Good” in the ACR for the year 2007-2008 by thevery same reporting and reviewing officer, despite the fact thatspecifically the respondent was given the opportunity against theACR for the year 2007-2008 – However, no valid reasons are givenfor rejecting the representation – Thus, the tribunal and the HighCourt did not commit any error in directing the Department to callfor a review meeting of the Screening Committee to re-assess thesuitability of the officer for the purpose of grant of SAG and whiledoing so to exclude the ACR for the year 2007-2008.

Dismissing the appeal, the Court

HELD : 1.1 In the instant case, the below benchmark ACRreporting the period from 01.04.2007 to 31.03.2008 wascommunicated to the respondent vide communication dated08.06.2010 in respect of which representation was made by therespondent on 19.06.2010. The same was rejected as per the

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Acommunication dated 01.10.2010. According to the respondent,the reviewing officer was due for retirement on 31.03.2008 andthe respondent submitted self-appraisal report on 15.04.2008 forthe period 01.04.2007 to 31.03.2008 and reporting officer gradedas “Good” on 17.04.2008. Further, reviewing officer signed andaccepted the same without any date in spite of fact that he hadBretired on 31.03.2008 as per Annexure A-6 to the applicationfiled by the respondent before the Tribunal. According to therespondent, his representation was not being objectivelyconsidered. In the circumstances, Departmental ScreeningCommittee subsequently assessed him unfit for grant ofCpromotion i.e., grant of NFU in SAG of ITS Group-A. [Para 7][495-D-F]

1.2 The tribunal on perusal of Annexure A-4/being ACRsfor three years i.e., 2005-06, 2006-07 and 2007-08 has noted thatfor the year 2007-08 highly damaging remarks have beenDrecorded by the same reporting authority and endorsed by thesame reviewing authority. The remarks are totally opposite tothose entered by the same authority previous years. Thecomparison of the remarks made in the ACRs for the year 2007-08 and for the years 2005-06 and 2006-07 have been made andextracted in the order of the Tribunal. [Para 8][495-G-H]E

1.3 The Tribunal noted that adverse remarks were notcommunicated to the respondent herein within the time limitsprescribed for such communication under the prevailing rulesgoverning the ACRs. Further attention of the officer was notdrawn during the year itself, to supposed falling standards alongFwith necessary caution/advice so as to give him a chance toimprove. The tribunal further noted that it is not the case of belowbenchmark grading but a case of recording adverse remarks inthe extreme. That the representations made by the respondentwere not considered objectively, dispassionately, and fairly asGthere were contradiction in the qualities or attributescommunicated in the said ACRs which were wholly contradictoryto each other. In the circumstances, the tribunal held that“adverse remarks made for the year 2007-08 were sweeping,extreme, and inconsistent with the previous remarks. Hence itwas held that the rejection of the representation was unjustifiedH

and the same was set aside. It was further observed by the tribunalthat the assessment of 2007-08 were clearly arbitrary andinconsistent and ought not to be allowed to stand in the way ofproper assessment of the respondent by the ScreeningCommittee for his suitability to be promoted to a higher grade.Hence, a direction was issued to the Screening Committee toconsider and reassess the suitability of the respondent hereinfor the purpose of grant of SAG by excluding the ACR of 2007-08and if the respondent was found suitable for grant of consequentialbenefits. Against the order of the tribunal the Union of India, theappellant preferred a writ petition before the High Court, whichreiterated what had been observed by the tribunal in its orderand dismissed the writ petition. [Para 8.1][498-A-E]

1.4 On perusal of what has been extracted by the Tribunalfrom the ACRs of 2005-06, it is noted that the respondent hasbeen graded as “Very Good” since he has very good knowledgein technical field as well as of administrative matters; willing toassume responsibility; has good organizing capability; motivatingability and timely and proper guidance giving capability. Therespondent has the capacity/resourcefulness to anticipateproblems in advance as well as unforeseen situations. He hasvery good quality decision-making ability and is able to weighpros and cons of alternatives and good capability of communicationand present arguments in oral and written manner and good skilland capacity of evaluating and recording performance ofsubordinates in an impartial and objective manner. Similarly inthe remarks for the year 2006-07, it has been written that therespondent has very good technical knowledge as well asadministrative knowledge. He has very good organizing capacityand was able to motivate and provide timely and proper guidanceto subordinates. He has good skill and capacity in evaluating andrecording performance of subordinates in an impartial andobjective manner. As against the said favourable remarks for theprevious two years, in the year 2007-08 it has been stated thatthough the technical knowledge of the respondent is good, hisfinancial and administrative knowledge is poor; that he has hardlyunderstood the environment in anticipating change; that he wasnever willing to assume responsibility, and had poor organising AB

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[2022] 15 S.C.R.

Acapacity and cannot anticipate problems and unforeseen situationsand does not take additional responsibility and has poor decision-making quality and average ability in communication andpresenting case problems. [Para 9][498-F-H; 499-A-D]

1.5 In the facts and circumstances of the case andBconsidering the fact that though the respondent was graded as“Very Good” in the ACRs for the years 2005-2006 and 2006-2007 and was graded only “Good” in the ACR for the year 2007-2008 by the very same reporting and reviewing officer, despitethe fact that specifically the respondent was given the opportunityagainst the ACR for the year 2007-2008. However, no validCreasons are given for rejecting the representation, the Court isof the opinion that in view of the said facts and circumstances,the tribunal and the High Court have not committed any error indirecting the Department to call for a review meeting of theScreening Committee to re-assess the suitability of theDrespondent for the purpose of grant of SAG and while doing so toexclude the ACR for the year 2007-2008. Therefore, in the factsand circumstances of the case, no interference is called for. [Para10][499-D-F]

Dev Dutt Vs. Union of India and Ors., (2008) 8 SCCE725 : [2008] 8 SCR 174; Abhijit Ghosh Dastidar Vs.Union of India & Ors., (2009) 16 SCC 146 : 2015 (9)SCALE 39; Sukhdev Singh Vs. Union of India and Ors.,(2013) 9 SCC 573; Sukhdeo Vs. Commissioner AmravatiDivision, Amravati and Anr., (1996) 5 SCC 103 : [1996]2 Suppl. SCR 287; High Court of Judicature atFAllahabad Vs. Sarnam Singh and Anr., (2000) 2 SCC339 : [1999] 5 Suppl. SCR 344; Dalpat AbasahebSolunke and Ors. Vs. Dr. B.S. Mahajan and Ors., AIR1990 SC 434 : 1989 (4) JT 487 – referred to.

Case Law Reference

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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2021of 2022.

From the Judgment and Order dated 29.03.2016 of the High Courtof Judicature for Rajasthan Bench at Jaipur in DB Civil Writ PetitionNo.740 of 2016.

Ms. Madhavi Divan, ASG, Gurmeet Singh Makker, Ms. NeelaKedar Gokhale, Ms. Praveena Gautam, Ms. Vimla Sinha, Nacjoleta Joshi,Advs. for the Appellants.

Mukesh Kumar Sharma, Adv. for the Respondent.

The Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court of Judicature for Rajasthan at Jaipurin DBCWP No. 740 of 2016 by which the High Court has dismissed thesaid writ petition preferred by the appellants and has confirmed thejudgment and order passed by the learned Tribunal allowing the O.A.No.430 of 2011 by directing the Department to call for a review meetingof the Screening Committee to re-assess his suitability for the purposeof grant of SAG and while doing so to exclude the ACR of 2007-2008,Union of India and others have preferred the present appeal.

2. The facts leading to the present appeal in a nutshell are asunder:- 2.1 The respondent herein, who belonged to the cadre of IndianTelecom Group A was sent on deputation to BSNL. He was posted asDeputy General Manager, BSNL, Sikar. His ACR grading was “VeryGood” for the years 2005-2006 and 2006-2007. However, for the year2007-2008, his ACR grading was only “Good”. The below benchmarkgrading for the year 2007-2008 was communicated to him vide letterdated 13.05.2010. The respondent was informed that if he was notsatisfied with the same, he may submit his representation to the GeneralManager, Telecom, Rajasthan Circle, Jaipur. The respondentaccordingly submitted a representation on 19.06.2010. It was the caseon behalf of the respondent that he got ACR grading as “Very Good”for the years 2005-2006 and 2006-2007, however, for the year 2007-2008, he got ACR grading as only “Good”, despite the fact that in allthe three years, the reporting officer and the reviewing authority was A

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Asame. It was also the case on behalf of the respondent that despitethere being no deficiency or inefficiency in performance of his work,the Reviewing Officer erroneously rated him “Good” in the ACR ofthe year 2007-2008, instead of “Very Good”, as was given to him inACRs of previous two years.

B2.2 His representation came to be turned down/rejected videcommunication/order dated 01.10.2010. That thereafter the meeting ofthe Departmental Promotion Committee (hereinafter referred to as the“DPC”) was held on 28.12.2010 to consider the grant of NFU in SAG.The respondent was not found eligible by the DPC on the ground that inthe year 2007-2008, his ACR was “Good”. Therefore, the respondentCpreferred O.A. No. 430 of 2011 before the Central AdministrativeTribunal.

2.3 Before the Tribunal, it was the case on behalf of the respondentthat his grading as “Good” in the year 2007-2008 and rejection of hisrepresentation against the below benchmark was arbitrary and unjustifiedDin as much as no shortcomings in his work during the period in questionwere ever brought to his notice.

2.4 The Tribunal opined that the remarks entered for the year2007-2008 were clearly adverse, which warranted communication tothe officer concerned within the time limit prescribed. This was to enableEhim to submit his representation but no such opportunity was given tothe officer. Considering the fact that in the earlier two years his ACRswere found to be “Very Good” and the subsequent ACR for the year2007-2008 though was by the same reporting officer, the same was“Good”, the same was arbitrary. The Tribunal hence set aside the rejectionFof the representation and directed to review the case of the respondentignoring the below benchmark “Good” for the year 2007-2008 and toreconsider the case of the respondent accordingly.

2.5 Feeling aggrieved and dissatisfied with the judgment and orderpassed by the learned Tribunal, the Union of India and others preferredGthe writ petition before the High Court. By the impugned judgment andorder, the High Court has dismissed the said writ petition, the Union ofIndia and others have hence preferred the present appeal.

3. Ms. Madhavi Divan, learned ASG has vehemently submittedthat in the present case before the DPC met, an opportunity was givento the respondent to make his representation against the belowH

benchmark ACR of the year 2007-2008. It is submitted that the samewas in accordance with the O.Ms. dated 14.05.2009 and 13.04.2010,which were issued after considering the decision of this Court in thecase of Dev Dutt Vs. Union of India and Ors., (2008) 8 SCC 725.It is contended that the High Court as well as the learned Tribunal haveerred in directing to ignore the below benchmark ACR for the year2007-2008 mainly and solely on the ground that prior to writing the belowbenchmark ACR, no opportunity was given to the respondent officer. Itis submitted that the aforesaid view has been taken relying upon thedecisions of this Court in the case of Dev Dutt (supra); Abhijit GhoshDastidar Vs. Union of India & Ors., (2009) 16 SCC 146 (in thiscase view taken in Dev Dutt (supra) was approved by this Court) andthe decision of this Court in the case of Sukhdev Singh Vs. Union ofIndia and Ors., (2013) 9 SCC 573.

3.1 Learned ASG appearing on behalf of the appellants hassubmitted that though it was held by this Court in the case of SukhdeoVs. Commissioner Amravati Division, Amravati and Anr., (1996)5 SCC 103 that downgrading by the Reviewing Officer in comparisonto his previous grading without opportunity of hearing to the concernedemployee is illegal, however, this Court in the subsequent decision in thecase of High Court of Judicature at Allahabad Vs. Sarnam Singhand Anr., (2000) 2 SCC 339 has explained the decision in the case ofSukhdeo (supra) and this Court has not accepted the view that beforean adverse entry was recorded in the character roll, an opportunity ofhearing was, by any principle, required to be given to the officer.

3.2 It is submitted that in that view of the matter and when therespondent was having below benchmark ACR, i.e., “Good” in the year2007-2008, which was considered by the DPC, the respondent was rightlydenied the functional upgradation in the SAG of ITS Group-A in the payband-4 of Rs. 37,400-67,000 with grade pay of Rs. 10,000/-.

3.3 It is further submitted by Ms. Divan, learned ASG that merelybecause in the earlier years, the respondent achieved “Very Good”, onlyon that ground, it cannot be held that awarding “Good” in the subsequentyear was arbitrary and/or mala fide. It is submitted that the quality ofwork performance of any employee may differ during the different periodeven under the same reporting officer/reviewing authority. It is only uptothe reporting officer and reviewing authority to judge his performanceand give suitable grading.

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A3.4 It is submitted that in the present case, the subsequentrepresentation against the below benchmark was considered by a dulyconstituted committee consisting of expertise on the subject. It issubmitted that after considering the grading of 2007-2008 and materialon record, the Committee rejected the representation of the respondentherein. Reliance was placed upon the decision of this Court in the caseBof Dalpat Abasaheb Solunke and Ors. Vs. Dr. B.S. Mahajan andOrs., AIR 1990 SC 434. It is submitted that as held by this Courtwhether a particular candidate is fit for a particular post or not, has to bedecided by the duly constituted committee, which has expertise on thesubject. It is submitted that as observed, the Court has no such expertiseCand the decision of the selection committee can be interfered with onlyon limited grounds, such as illegality or patent material irregularity in theconstitution of the committee or its procedure vitiating the selection orproved mala-fides affecting the selection etc.

3.5 Now, so far as the reliance placed upon the decision of thisDCourt in the case of Dev Dutt (supra); subsequent decision in the caseof Abhijit Ghosh Dastidar (supra) and in the case of Sukhdev Singh(supra) is concerned, it is submitted by Ms. Divan, learned ASG thatnone of the aforesaid decisions shall be applicable to the facts of thecase on hand. It is submitted that in fact after the decision of this Courtin the case of Dev Dutt (supra), the department issued two O.M.sEdated 14.05.2009 and 13.04.2010 and the opportunity to the employee/officer against the below benchmark ACR was given. It is submittedthat even otherwise in the aforesaid decisions, either the ACRs werenot communicated at all or it was found that adverse remarks sufferfrom inconsistency or lack of bona fides.F3.6 Making the above submissions and relying upon the decision 3.6 Making the above submissions and relying upon the decisionof this Court in the case of Sarnam Singh (supra) and on the O.Ms.dated 14.05.2009 and 13.04.2010, it is prayed to allow the present appealand quash and set aside the orders passed by the High Court as well asthe learned Tribunal.

G4. Present appeal is vehemently opposed by Shri Mukesh KumarSharma, learned counsel appearing on behalf of the respondent officer.

4.1 It is vehemently contended by the learned counsel appearingon behalf of the respondent that considering the fact that in the earlieryears 2005-2006 and 2006-2007, the respondent’s ACRs were “VeryHGood” and in the year 2007-2008, the very reporting officer/reviewing authority gave the below benchmark “Good” and before giving the belowbenchmark ACR – “Good”, no opportunity was given to the respondentto improve himself against the proposed below benchmark ACR, both,the learned Tribunal as well as the High Court have rightly directed toreview the case of the respondent ignoring the below benchmark ACRof the year 2007-2008.

4.2 Relying upon the decisions of this Court in the case of DevDutt (supra), Abhijit Ghosh Dastidar (supra) and Sukhdev Singh(supra), it is urged that as observed and held by this Court an opportunityto make representation against the adverse remarks/below benchmarkhas to be given within a reasonable time. That in the present case, suchan opportunity was not given within a reasonable time and even otherwiseon facts also when the very reporting officer/reviewing authority gave“Very Good” in the previous years and in the subsequent year all of asudden gave below benchmark “Good”, it is rightly directed to ignorethe below benchmark “Good”.

5. Heard the learned counsel for the respective parties at length.

6. In the present case, the learned Tribunal as well as the HighCourt have directed the department to review the case of the respondentby ignoring the below benchmark of “Good” in the year 2007-2008 mainlyon the following grounds:- (i) that in the earlier years, the very reportingofficer/reviewing authority awarded “Very Good” for the years 2005-2006 and 2006-2007 and the very reporting officer/reviewing authorityhas given below benchmark “Good” for the year 2007-2008 and thereforethe same is arbitrary and there is no basis to award the below benchmark– “Good”; (ii) that before the below benchmark ACR “Good” for theyear 2007-2008, no opportunity was given to the respondent officer toimprove himself and no deficiency was pointed out; and (iii) that noopportunity was given to the respondent officer to make representationagainst the proposed below benchmark ACR of the year 2007-2008.While giving the aforesaid findings and while arriving at the aforesaidfinal conclusion, the Tribunal as well as the High Court have heavilyrelied upon the decisions of this Court in the case of Sukhdeo (supra);Dev Dutt (supra); Abhijit Ghosh Dastidar (supra) and SukhdevSingh (supra). However, on considering the aforesaid decisions, itemerges that in the aforesaid cases, the adverse ACRs either were notcommunicated at all and/or on facts found to be inconsistent and sufferingfrom lack of bona fides.

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6.1 In the case of Dev Dutt (supra), this Court has held inparagraphs 36 and 37 as under:- A

“36. In the present case, we are developing the principles of naturaljustice by holding that fairness and transparency in publicadministration requires that all entries (whether poor, fair, average,good or very good) in the annual confidential report of a publicservant, whether in civil, judicial, police or any other State service(except the military), must be communicated to him within areasonable period so that he can make a representation for itsupgradation. This in our opinion is the correct legal position eventhough there may be no rule/G.O. requiring communication of theentry, or even if there is a rule/G.O. prohibiting it, because theprinciple of non-arbitrariness in State action as envisaged by Article14 of the Constitution in our opinion requires such communication.Article 14 will override all rules or government orders.

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37. We further hold that when the entry is communicated to himthe public servant should have a right to make a representationagainst the entry to the authority concerned, and the authorityconcerned must decide the representation in a fair manner andwithin a reasonable period. We also hold that the representationmust be decided by an authority higher than the one who gave theentry, otherwise the likelihood is that the representation will besummarily rejected without adequate consideration as it would bean appeal from Caesar to Caesar. All this would be conducive tofairness and transparency in public administration, and would resultin fairness to public servants. The State must be a model employer,and must act fairly towards its employees. Only then would goodgovernance be possible.”

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6.2 In the instant case, the respondent was graded as “Very Good”in the ACRs for the years 2005-06 and 2006-07. However, in the year2007-08 he was graded only “Good” despite the fact that for all thethree years, the reporting and reviewing officer were same. In the caseof Dev Dutt Vs. Union of India - [(2008) 8 SCC 725], it was observedGthat all entries in the ACR of a public servant must be communicated tohim within the reasonable period so that he can make a representationfor his upgradation despite there be no rule or government order to thateffect. Pursuant to the judgment in Dev Dutta (supra), OMs dated14.05.2009 and 13.04.2010 were issued by the appellant herein. TheHsame are extracted as under:

“ANNEXURE P-2A

No. 2101 1/1/2005-Estt (A) (Pt-II)

Government of India

Ministry of Personnel, Public Grievances and Pensions B

(Department of Personnel and Training)

North Block, New Delhi, 14[th] May, 2009

OFFICE MEMORANDUM

Subject:- Maintenance and preparation of Annual PerformanceAppraisal Reports-communication of all entries for fairness andtransparency in public administration.

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The undersigned is directed to invite the attention of the Ministries/Departments to the existing provisions in regard to preparationand maintenance of Annual Confidential Reports which inter-aliaprovide that only adverse remarks should be communicated tothe ‘officer reported upon for representation, if any. The SupremeCourt has held in their judgment dated 12.5.2008 in the case ofDev Dutt vs. Union of India (Civil Appeal No. 7631 of 2002)’ thatthe object of writing the confidential report and making entries isto give an opportunity to the public servant to improve theperformance. The 2[nd ]Administrative Reforms Commission in their10[th] Report has also recommended that the performance appraisalsystem for all services be made more consultative and transparenton the lines of the PAR of the All India Services.

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2. Keeping in view the above position, the matter regardingcommunication of entries in the ACRs in the case of civil servicesunder the, Government of India has been further reviewed andthe undersigned is directed to convey the following decisions ofthe Government:

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(i) The existing nomenclature of the Annual Confidential Reportwill be modified as Annual Performance Assessment Report(APAR).

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(ii) The full APAR including the overall grade and assessmentof integrity shall be communicated to the concerned officerafter the Report is complete with the remarks of theReviewing Officer and the Accepting Authority wherever H

such system is in vogue. Where Government servant hasonly one supervisory level above him as in the case ofpersonal staff attached to officers, such communication shallbe made after the reporting officer has completed theperformance assessment.

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B(iii)The section entrusted with the maintenance of APARs afterits receipt shall disclose the same to the officer reportedupon.

(iv) The concerned officer shall be given the opportunity to makeany representation against the entries and the final gradinggiven in the Report within a period of fifteen days from thedate of receipt of the entries in the APAR. Therepresentation shall be restricted to the specific factualobservations contained in the report leading to assessmentof the officer in terms of attributes, work output etc. Whilecommunicating the entries, it shall be made clear that incase no representation is received within the fifteen days,it shall be deemed that he/she has no representation to make.If the concerned APAR Section does not receive anyinformation from the concerned officer on or before fifteendays from the date of disclosure, the APAR will be treatedas final.

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(v) The new system of communicating the entries in the APARshall be made applicable prospectively only with effect fromthe reporting period 2008-09 which is to be initiated after1[st] April, 2009.

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(vi) The competent authority for considering adverse remarksunder the existing instructions may consider therepresentation, if necessary, in consultation with the reportingand/or reviewing officer and shall decide the matterobjectively based on the material placed before him withina period of thirty days from the date of receipt of therepresentation.

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(vii) The competent authority after due consideration may rejectthe representation or may accept and modify the APARaccordingly. The decision of the competent authority andthe final grading shall be communicated to the officer H

[M. R. SHAH, J.]

reported upon within fifteen days of receipt of the decisionof the competent authority by the concerned APAR Section.

3. All Ministries/Departments are requested to bring to the noticeof all the offices under them for strict implementation of the aboveinstructions.

(C.A. Subramanian)

Director

ANNEXURE P-3

No. 21011/1/2010-Estt.A

Government of India

Ministry of Personnel, Public Grievances & Pensions Department of Personnel & Training North Block, New DelhiDated the 13[th] April, 2010

OFFICE MEMORANDUM

Subject:Below Benchmark gradings in ACRs prior to thereporting period 2008-09 and objective consideration ofrepresentation by the competent authority against remarks in theAPAR or for upgradation of the final grading.

The undersigned is directed to say that prior to the reporting period2008-09, only the adverse remarks in the ACRs had to becommunicated to the concerned officer for representation, if anyto be considered by the competent authority. The question oftreating the grading in the ACR which is below the benchmarkfor next promotion has been considered in this Department and ithas been decided that if an employee is to be considered forpromotion in a future DPC and his ACRs prior to the period 2008-09 which would be reckonable for assessment of his fitness insuch future DPCs contain final grading which are below thebenchmark for his next promotion, before such ACRs are placedbefore the DPC, the concerned employee will be given a copy ofthe relevant ACR for his representation, if any, within 15 days of A

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such communication, it may be noted that only below benchmarkACR for the period relevant to promotion need be sent. There isno need to send below benchmark ACRs of other years.

2. As per existing instructions, representations against the remarksor for upgradation of the final grading given in the APAR(previously known as ACR) should be examined by the competentauthority in consultation, if necessary, with the Reporting and theReviewing Officer, if any while considering the representation,the competent authority decides the matter objectively in a quasi-judicial manner on the basis of material placed before it. Thiswould imply that the competent authority shall take into accountthe contentions of the officer who has represented against theparticular remarks/grading in the APAR and the views of theReporting and Reviewing officer if they are still in service on thepoints raised in the representation vis-à-vis the remarks/gradingsgiven by them in the APAR. The UPSC has informed thisDepartment that the Commission has observed that while decidingsuch representations, the competent authorities sometimes do nottake into account the views of Reporting/Reviewing Officers ifthey are still in service. The Commission has further observedthat in a majority of such cases, the competent authority does notgive specific reasons for upgrading the below benchmark ACR/APAR gradings at par with the benchmark for next promotion.

3. All Ministries/Departments are therefore requested to informthe competent authorities while forwarding such cases to them todecide on the representations against the remarks or forupgradation of the grading in the APAR that the decision on therepresentation may be taken objectively after taking into accountthe views of the concerned Reporting/Reviewing Officers if theyare still in service and in case of upgradation of the final gradinggiven in the APAR, specific reasons therefore may also be givenin Inc order of the competent authority.

(C.A. Subramanian)

Director”

On perusal of OM dated 14.05.2009, it is noted that the new systemof communicating the entries in Annual Performance Assessment Report(APAR) provides that the same should be communicated within a period of fifteen days from the date of receipt of the entries in the APAR. Thenew system is applicable prospectively with effect from the reportingperiod 2008-09, which is initiated after 01.04.2009.

6.3 Further as per OM dated 13.04.2010, it has been stated thatthe question of treating the grading in the ACR which is below thebenchmark for next promotion has been considered by the Departmentand it has been decided that if an employee is to be considered forpromotion in a future DPC and his ACRs prior to the period 2008-09which would be reckonable for assessment of his fitness in such futureDPCs contain final grading which are below the benchmark for his nextpromotion, before such ACRs are placed before the DPC, the concernedemployee will be given a copy of the relevant ACR for his representationif any, within fifteen days of such communication and only belowbenchmark ACR for the period relevant to promotion need be sent. Thereis no need to send below benchmark ACRs of other years.

7. In the instant case, the below benchmark ACR reporting theperiod from 01.04.2007 to 31.03.2008 was communicated to therespondent vide communication dated 08.06.2010 in respect of whichrepresentation was made by the respondent on 19.06.2010. The samewas rejected as per the communication dated 01.10.2010. According tothe respondent, the reviewing officer was due for retirement on31.03.2008 and the respondent submitted self-appraisal report on15.04.2008 for the period 01.04.2007 to 31.03.2008 and reporting officergraded as “Good” on 17.04.2008. Further, reviewing officer signed andaccepted the same without any date in spite of fact that he had retiredon 31.03.2008 as per Annexure A-6 to the application filed by therespondent before the Tribunal. According to the respondent, hisrepresentation was not being objectively considered. In the circumstances,Departmental Screening Committee subsequently assessed him unfit forgrant of promotion i.e., grant of NFU in SAG of ITS Group-A.

8. The Tribunal on perusal of Annexure A-4/being ACRs for threeyears i.e., 2005-06, 2006-07 and 2007-08 has noted that for the year2007-08 highly damaging remarks have been recorded by the samereporting authority and endorsed by the same reviewing authority. Theremarks are totally opposite to those entered by the same authorityprevious years. The comparison of the remarks made in the ACRs forthe year 2007-08 and for the years 2005-06 and 2006-07 have been A

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Amade and extracted in paragraphs 4 and 5 of the order of the Tribunal.The same are extracted as under:

“4. We agree with the respondents that an officer need not earnthe same grading every year and the grading could be differenteach year based on his performance. If, this was not the case, thewhole purpose of an annual assessment would stand defeated.However, a careful perusal of the copies of ACRs produced bythe applicant at Annexure A/4 for the 3 years i.e. 2005-06, 2006-07 & 2007-08 shows that in the year 2007-08 highly damagingremarks have been recorded by the same reporting authority andendorsed by the same reviewing authority. Even in regard tomatters which could be regarded as personal attributes as differentfrom performance parameters – such as communication skills,capacity for appraisal, ability to weigh pros and cons before takinga decision, organizing capability, domain knowledge in respect ofthe area of work etc. the remarks appear to be virtually the oppositeof those entered by the same authority in the previous years. Toillustrate, the reporting authority had entered the following remarksin his ACR of 2005-06, 2006-07 and 2007-08 :- B

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ACR comments for the year 2005-06:

He has very good knowledge of technical field. Also level ofapplication of related instructions was also very good. He hasvery good knowledge of administrative matters and his levelof application related instruction was very good. He was willingto assume responsibility. He has very good organizing capability,motivating ability and timely and proper guidance givingcapability. He has very good capacity/resourcefulness toanticipate problems in advance and to take action to handlesuch situations as well as unforeseen situations. He has verygood quality of decision making and is able to weigh pros andcons of alternatives. He has good capability of communicationand present arguments in oral and written way. He has verygood skill and capacity of evaluating and recording performanceof subordinates in an impartial and objective manner.

E

F

G

ACR Comments for the year 2006-07:

He has very good technical knowledge. He has very goodadministrative knowledge. He has very good capacity to set H

targets. He can anticipate change, understood environment andcontributed new ideas. He was generally willing to assumeresponsibilities. He has very good organizing capacity and wasable to motivate and provide timely and proper guidance tosubordinates. He could handle unforeseen situations at his ownand was willing to take responsibility. He has good skill andcapacity in evaluating and recording performance ofsubordinates in an impartial and objective manner.

5. As against the aforesaid remarks, ACR of the officer for theyear 2007-08 contains following remarks recorded by the sameauthority:

Technical knowledge is good. Financial knowledge is poor.Administrative knowledge is very poor particularly in tenderwork/rulings application. He was always have to be chased toset targets for himself and subordinates. He hardly understoodthe environment in anticipating change and contributing newideas/methods of work he was just average. He was neverwilling to assume responsibility, had poor organizing capacityand was average in motivating/providing timely and properguidance to staff. He was incapacitated and very poor inanticipating problems and handle unforeseen situations on hisown. He was never willing to take additional responsibility andnew areas of work. He had very poor decision making qualityand also very poor in weighing pros and cons of alternatives.He has average ability to communicate and present argumentsin written and poor in verbal.”

6. It would be clear from remarks entered for the year 2007-08that they were clearly adverse which warranted communicationto the officer within the time limits prescribed to enable him tosubmit his representation. Many of the remarks were the exactopposite of the positive attributes found in him in the previousyears by the same authority. Admittedly, remarks were notcommunicated to the applicant within the time limits prescribedfor such communication under the prevailing rules governingACRs. There is also no evidence of the attention of the officerbeing drawn during the year itself to his falling standards alongwith necessary caution/advice so as to give him a chance toimprove.”

AB

C

D

E

F

G

H

A8.1 The Tribunal has also noted that adverse remarks were notcommunicated to the respondent herein within the time limits prescribedfor such communication under the prevailing rules governing the ACRs.Further attention of the officer was not drawn during the year itself, tosupposed falling standards along with necessary caution/advice so as togive him a chance to improve. The Tribunal has further noted that it isBnot the case of below benchmark grading but a case of recording adverseremarks in the extreme. That the representations made by the respondentwere not considered objectively, dispassionately, and fairly as there werecontradiction in the qualities or attributes communicated in the said ACRs which were wholly contradictory to each other. In the circumstances,Cthe Tribunal held that “adverse remarks made for the year 2007-08 weresweeping, extreme, and inconsistent with the previous remarks. Henceit was held that the rejection of the representation was unjustified andthe same was set aside. It was further observed by the Tribunal that theassessment of 2007-08 were clearly arbitrary and inconsistent and ought

not to be allowed to stand in the way of proper assessment of theDrespondent by the Screening Committee for his suitability to be promotedto a higher grade. Hence, a direction was issued to the ScreeningCommittee to consider and reassess the suitability of the respondentherein for the purpose of grant of SAG by excluding the ACR of 2007-08 and if the respondent was found suitable for grant of consequentialEbenefits. Against the order of the Tribunal the Union of India, the appellantherein preferred a writ petition before the High Court, which reiteratedwhat had been observed by the Tribunal in paragraph 6 of its order anddismissed the writ petition.

9. On perusal of what has been extracted by the Tribunal from Fthe ACRs of 2005-06, we note that the respondent has been graded as“Very Good” since he has very good knowledge in technical field aswell as of administrative matters; willing to assume responsibility;has good organizing capability; motivating ability and timely andproper guidance giving capability. The respondent has the capacity/

resourcefulness to anticipate problems in advance as well asGunforeseen situations. He has very good quality decision-makingability and is able to weigh pros and cons of alternatives and goodcapability of communication and present arguments in oral andwritten manner and good skill and capacity of evaluating andrecording performance of subordinates in an impartial and objectiveHmanner.

Similarly in the remarks for the year 2006-07, it has been writtenthat the respondent has very good technical knowledge as well asadministrative knowledge. He has very good organizing capacityand was able to motivate and provide timely and proper guidanceto subordinates. He has good skill and capacity in evaluating andrecording performance of subordinates in an impartial and objectivemanner.

As against the aforesaid favourable remarks for the previous twoyears, in the year 2007-08 it has been stated that though the technicalknowledge of the respondent is good, his financial andadministrative knowledge is poor; that he has hardly understoodthe environment in anticipating change; that he was never willingto assume responsibility, and had poor organising capacity andcannot anticipate problems and unforeseen situations and does nottake additional responsibility and has poor decision-making qualityand average ability in communication and presenting case problems.

10. Therefore, in view of the above and in the facts andcircumstances of the case and considering the fact that though therespondent was graded as “Very Good” in the ACRs for the years 2005-2006 and 2006-2007 and was graded only “Good” in the ACR for theyear 2007-2008 by the very same reporting and reviewing officer, despitethe fact that specifically the respondent was given the opportunity againstthe ACR for the year 2007-2008. However, no valid reasons are givenfor rejecting the representation, we are of the opinion that in view of theaforesaid facts and circumstances, the learned Tribunal and the HighCourt have not committed any error in directing the Department to callfor a review meeting of the Screening Committee to re-assess thesuitability of the respondent for the purpose of grant of SAG and whiledoing so to exclude the ACR for the year 2007-2008. Therefore, in thefacts and circumstances of the case, no interference of this Court iscalled for.

In view of the above and for the reasons stated above, presentappeal fails and the same deserves to be dismissed and is accordinglydismissed.

Nidhi Jain

(Assisted by : Tamana, LCRA)

A

B

C

D

E

F

G