IMPORTANT POINT
When uncommunicated ACRs are communicated and representations thereagainst considered and rejected, such ACRs cannot be treated as uncommunicated and ignored for giving promotion.

JUDGMENT

Prafulla C. Pant, J.

This appeal is directed against judgment and order dated 27.2.2014, passed by the High Court of Judicature at Allahabad in Writ – A No. 50733 of 2012 whereby the High Court has allowed the petition and set aside the order dated 16.1.2012 passed by the Central Administrative Tribunal, Allahabad Bench (for short “the Tribunal”) in Original Application (OA) No. 658 of 2011. By said order the Tribunal (CAT) had directed that the claim by the appellant Saroj Kumar for promotion be considered ignoring earlier uncommunicated entries of Annual Confidential Reports (ACRs). The controversy in the present case relates to the downgrading ACRs of the appellant without giving him any opportunity, which were later communicated and representation made by the appellant was also considered and rejected.

2. We have heard learned counsel for the parties and perused the papers on record.

3. Succinctly stated, the facts are that the appellant Saroj Kumar was selected through Civil Service Examination, 1985, and was allotted Indian Defence Accounts Service (for short “IDAS”). On 29.1.1996 he was promoted as Junior Administrative Officer with effect from 12.1.1996. He was promoted in the pay scale of Rs.14200-18200 vide order dated 10.11.2000 and was given Selection Grade with effect from 5.5.2000. Later, on 14.6.2004 he was posted as Joint Controller of Defence Accounts, Jabalpur (M.P.). A DPC was convened for promotion in the Senior Administrative Grade on 10.5.2006. It is pleaded by the appellant that to his utter shock, ignoring him, juniors to him were promoted.

4. Having aggrieved with the denial of promotion, the appellant, in the first round of litigation, filed OA No. 640 of 2006 before CAT, Allahabad Bench, challenging the proceedings of the DPC, and granting promotion to the junior officers. The Tribunal, vide order dated 18.9.2008, disposed of the OA remitting the matter back to the respondent authorities for communication of annual confidential reports and to consider the case of the appellant afresh, keeping in mind the law laid down by the Apex Court in Dev Dutt v. Union of India and others, (2008) 8 SCC 725. In response to said order, the appellant was communicated the annual confidential reports and he submitted representation on 29.7.2009 to the respondent authorities pleading that in Abhijit Ghosh Dastidar v. Union of India and others, (2009) 16 SCC 146 it has been held that if a grading falling below the benchmark, has not been communicated to the concerned employee, it has to be ignored while considering the promotion of such employee. However, vide order dated 22.1.2010, the respondent authorities rejected the representation against downgrading of remarks by Reviewing Authority and upheld the ACRs for the period 1999-2000, 21.6.2000 to 31.3.2001 and 1.4.2001 to 31.3.2002, which, according to the appellant, should have been treated uncommunicated.

5. As such, in the second round the appellant filed OA No. 490 of 2010 before the Tribunal challenging the rejection of the representation by the respondent authorities. The Tribunal was pleased to allow the OA vide order dated 27.4.2010 and set aside the order dated 22.1.2010 and once again remitted the matter back to the respondent authorities for reconsideration of the representation of the appellant. Aggrieved by the same, the respondent authorities filed Civil Miscellaneous Writ Petition No. 8357 of 2011 before Allahabad High Court, which was dismissed on 21.2.2011. While dismissing the writ petition, the High Court observed that alleged downgrading of the ACRs of the appellant by the then Reviewing Authority (against the grading recorded by the Assessing Officer and the Reporting Officer) was without any material available on record. The High Court further observed that the decision of the competent authority is simply reiteration of downgrading of the three entries by the Reviewing Officer, by observing that the Reviewing Officer has downgraded the e