Saturday, 22 August 2015

FOR THE PURPOSE OF DENYING PROMOTION, ALL ADVERSE ACRsTO BE COMMUNICATED: SC

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]

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