In a
decision of the Supreme Court on 21/08/2015, it was held that for the purpose
of denying promotion, all adverse ACRs to be communicated to the concerned
persons. In its absence, the entire process was held to be invalid. This is a
very interesting story to know how and to what extent a person could be
harassed.
(NB:- I was also subjected to similar harassment. My story is now to be
published as a book on 24/8/2015 in a public meeting.)
The
brief facts of the case are as below :-
The
dispute in this case arose when a letter dated 28.06.2000 was received by the
appellant in this case before the Supreme Court, wherein the Annual
Confidential Report (ACR) for the period 1.07.1999 to 31.03.2000 was rated his
performance as ‘average’. This led to a representation dated 07.07.2000 before the
DGP-cum-Commandant General, requesting the supply of documents on the basis of
which his conduct and diligence was graded as ‘average’. But no satisfactory
response was received by the appellant despite having been made reminder representations
dated 18.08.2000 and 25.08.2000 for supply of the said documents. Rest of the
facts are already covered the operative part of the judgement.
After
hearing both the parties and considering the facts and rival legal contentions
urged by them including the written submissions, and on perusal of record, the has
stated that the promotion of the appellant to the post of Battalion Commander
from the post of District Commandant was governed by Rule 8(1)(2)(i). The
aforesaid rule contemplates that 75% of the promotional posts of the Battalion
Commander be filled up by promotion amongst the Battalion second in command.
The legal requirement for promotion to the post of Battalion Commander is that
the claimant should have been working as a District Commandant for a period of
8 years and the appointment to the said promotional post shall be made by the
Competent Authority on seniority -cum- merit basis. No person shall be entitled
to claim promotion on the basis of seniority alone. As per the Punjab State
Government Instructions issued on 06.09.2001, certain guidelines have been laid
down for DPC to consider the cases of promotion to the post of Class-I and Class-II
namely, group ‘A’ and ‘B’ posts. As per the said guidelines, an eligible
candidate is promoted on the basis of the seniority-cum-merit criteria, where
merit is determined on the basis of benchmark awarded to the various aspects
contained in the ACR of the officer, wherein marks are awarded against such
entries made in the ACRs of the officers concerned for the relevant period.
Further,
as per the records obtained by the appellant from the respondents under the RTI
Act at the time of his claim for promotion to the post of Battalion Commander
was first considered, his ACRs from year 1996 were considered. The Instructions
dated 29.12.2000 would be applicable prospectively to the ACRs of the appellant
for relevant periods which were prepared after those Instructions were issued.
According to the Instructions, officers obtaining 0-14 marks out of a total of
20 marks would be graded over all ‘Good’. Thus, the appellant was entitled to
promotion as he had been awarded 10 marks as per the proceedings of DPC.
The
High Court in the impugned judgment further observed that the final reporting
authority had downgraded the appellant as an ‘average’ officer for the above
relevant period. As per the executive Instructions dated 10.01.1985 issued by the
State Government, the Commandant General is the final Authority for the rank of
the District Commander. That being the factual position, the downgrading of the
performance of the appellant in his ACR for the above relevant period by the respondent
No. 4 was not valid as the same was done without any authority and competence.
The adverse entries in the ACR have deprived the appellant of his right of
promotion to the post in question and therefore, the said adverse entries in
the ACRs against the appellant are not legal and valid.
A
perusal of the ACR for the period 2000-2001 reveals that though the general
remarks stated that “He is very good and responsible officer” respondent No. 4
had given a grade which read, “I agree. An average officer”. The said entry
shows that he had agreed to all the remarks of the ACR given in respect of
columns 1 to 18 for that year by the Competent Accepting Authority, but he further
stated assessed the officer to be an ‘average’ officer without assigning any
reason whatsoever apart from his competence to make such adverse entries. The
overall grading of the ACR is based upon the observations made by the Reporting
Authority, Reviewing Authority and final Accepting Authority. As per the
entries made by the respondent No. 4, he had agreed to the overall grading as
given by the Accepting Authority. In such a case, he could not have downgraded
the overall grading in the ACR by using the words “an average officer”. Further,
if the comments made on 20.05.2004 by the respondent No. 4 on the ACR for the
year 2000-2001 are being sought to justify the stand of denial of promotion to
the appellant to the post in question, then the clarification needs to take
effect from that date, i.e 20.05.2004. In such a case, the appellant was to be
assigned 3nmarks as per the instructions for the year 2003, when he was ignored
for the promotion for the first time.
The
SC further stated that a perusal of the copy of the ACR for the period
2003-2004 reflects a true picture of the injustice that has been perpetrated
against the appellant. The ACR has been written by Mr. Tejinder Singh, respondent
No. 4 who was the Reporting Authority as the Divisional Commandant. The very same
officer was also the Reviewing Authority as Deputy Commandant General. Further,
the same officer also happened to be the Final Accepting Authority as the Commandant
General, as is evident from his comment dated 30.09.2004. The fact that in the
said year also the performance of the appellant had been graded as ‘average’
clearly reveals the malafide intention of the respondent nos.1-4 in deliberately
denying the promotion to the appellant to the post in question. According to
the respondents themselves, the executive Instructions dated 06.09.2001 have
not been superseded by any other Instructions or rules framed by the competent authority.
If these illegal downgrading entries in the ACR for the relevant period are
ignored, then the appellant would attain 14 marks. As per the Instructions dated
06.09.2001, 12 marks were required for promotion to the post as per the benchmark
fixed. Further, the adverse remarks for the period 1999-2000 were conveyed to
appellant vide communication dated 28.06.2000 by the D.G.P-cum Commandant General.
The representations dated 18.08.2000 and 25.08.2000 made by the appellant against
the same were submitted to respondent No. 4. The said representation was
rejected on 07.05.2001. The appellant had challenged the same by filing Civil Suit
No. 70 of 2001, wherein the respondent No. 4 was impleaded as defendant No. 3. The
civil suit was decreed on 15.03.2002 in favour of the appellant. The said
judgment and decree passed in favour of the appellant has not been implemented
by the respondent Nos. 4 and 5, despite having attained finality, which clearly
reflects the fact that the respondent No.4 was not fair in considering him for
promotion to the post of Battalion Commander as provided under Rule 8(2) of the
Rules. According to the Rules, the appointment to the promotional post shall be
made on seniority-cum-merit basis. As per the ACRs placed on record, the
appellant has fulfilled the aforesaid requirement of seniority-cum-merit by securing
14 marks, as per the Instructions in relation to all aspects entered in the
ACR. Thestrong reliance placed upon the adverse remarks made by the respondent
No.4, who has made the same without assigning any reasons, has resulted in the appellant
being denied of the promotional benefit, even though the order of the
respondent No. 4 was set aside by the judgment and decree in Civil Suit no. 70
of 2001. The action of respondent No. 4 in denying the promotional benefit to
the appellant is tainted with malafides. It can further be observed from the
record that it was respondent no.7 who had filed the reply on behalf of all the
respondents in the writ petition proceedings before the High Court. It is important
to note at this stage that respondent No. 7 happens to be an officer junior to the
appellant, who was promoted to the post in question. The non-filing of written
statement by respondent No. 4 traversing the allegations of malafide against him
proves the malafide intention on part of the respondent No. 4. Therefore, there
was no justification for the respondent No. 4 in denying the promotional
benefit to the post of Battalion Commander to the appellant. SC also referred
to an earlier case where it was held that if the ACR of the officer concerned is
to be used for the purpose of denying promotion, then all such ACRs were
required to be communicated to him, to enable him to make a representation against
his adverse entries made in the ACRs.
As
per the record submitted by the respondents, the appellant was given grade ‘A+’
for the year 2001-2002, but only 1 mark was assigned. According to the executive
Instructions, the grade ‘A+’ is to be assigned 4 marks. Accordingly, if 4 marks
are assigned for the ACR of the appellant for the period 2001-2002, then he
would have scored 12 marks at the time of consideration for promotion in the
year 2003, whereas admittedly, the appellant was required to achieve only 10
marks in order to be promoted to the post of Battalion Commander. Hence, if the
calculation of marks made by the respondents on the various aspects in the ACR
of the appellant is believed to be true, then also he has achieved the required
benchmark. The action of the respondent No. 4 in deliberately ignoring the claim
of the appellant is vitiated in law as the same is contrary to the Rules and
records of ACR for the relevant period and Instructions issued by the State
Government laying down certain guiding principles.
Therefore,
the SC stated that the order of denial of promotion to the appellant, which had
been affirmed by the High Court in its judgment and order passed in the Writ Petition
and Review Application was liable to be set aside.
For
the reasons stated above, the SC passed the following order:-
“(1)
We set aside the impugned judgment and order passed by the High Court in both the
Civil Writ Petition and the Review Application and also the order of denying
the promotional benefit by the respondents-Department to the post of the Battalion
Commander from the year 2001-2002;
(2)
Further, we direct the respondent Nos. 1 to 5 to reconsider the claim of the appellant
in the light of our findings and reasons recorded on the contentious factual
and legal aspects so that he could get higher post of Battalion Commander
notionally to get pensionary benefits as he has been prematurely retired from
service on 31.7.2007; and
(3)
The said direction shall be complied with within 8 weeks from the date of the receipt
of the copy of this order and for the purpose of fixing his pensionary benefits
and other monetary benefits for which he is legally entitled to and submit the
compliance report to this Court.
The appeal is allowed in the above said terms with cost of Rs.10,000/- payable
to the appellant by respondent Nos. 1 to 4.”
[
Reference:- CIVIL APPEAL NO. 6532 OF 2015 (Arising out of S.L.P. (C) NO. 1640
of 2014) DALJIT SINGH GREWAL Vs. STATE OF PUNJAB & ORS (SC) dated August
21, 2015]
