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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH AT ITANAGAR BENCH
NELSON SAILO, J.
Pankaj Dixit – Petitioner
Versus
The Union of India and Others – Respondents
W.P. (C) No. 519 of 2018
Decided On : 17-11-2022
Assistant Executive Engineer – Competent Authority – Learned counsel petitioner learned DSGI appearing for respondent appears for respondent despite grievance of petitioner in a nutshell is that he has been given grading of Average in his ACR for period communicated with same prior to holding of a Departmental Promotion Committee (DPC) for considering promotion from post of Assistant Executive Engineer – Held, Apex Court has held that consideration of a representation in this regard is not an empty formality employee to advance in his career incumbent upon authority concerned to meticulously examine consider and pass a reason order against any representation filed for upgradation of ACR – Court considered view that respondent authority concerned should re-visit grievances projected by petitioner through his representation particular – Such examination should be initiated and completed as expeditiously as possible preferably within outer limit of receipt of certified copy of this order – Petition is accordingly stands disposed of.
Key Points: - The petitioner alleges non-communication of ACR gradings denied him a fair promotion consideration and seeks up-gradation of ACR with consequential benefits. (!) (!) - The Court held that the representation for up-gradation of ACR is not an empty formality and must be meticulously examined with a reasoned order, preferably within six weeks from receipt of certified copy of the order. (!) (!) - The Court directed the competent authority to re-visit the petitioner’s representations dated 20.07.2010 and 30.03.2011 and complete examination expeditiously, granting consequential benefits if up-gradation is warranted, and communicate the decision to the petitioner. (!) (!)
JUDGMENT :
NELSON SAILO, J.
1. Heard Mr. T.T. Tara, learned counsel for the petitioner and also Mr. M. Kato, learned DSGI appearing for the respondent Nos. 1, 2 and 3. None appears for respondent No. 4 despite notice.
2. The grievance of the petitioner in a nutshell is that he has been given the grading of “Average” in his ACR for the period from 14.05.2005 to 09.01.2006 and from 01.04.2006 to 23.03.2007. He was not communicated with the same prior to the holding of a Departmental Promotion Committee (DPC) for considering the promotion from the post of Assistant Executive Engineer (Civil) to the post of Executive Engineer (Civil) under the Border Roads Organization (BRO).
3. It is the case of the petitioner that as a result, the private respondent No. 4 who is much junior to him was promoted and therefore, grave injustice has been caused to him.
4. Mr. T.T. Tara, learned counsel submits that the petitioner was clearly eligible to be considered for promotion when the DPC met on 29.06.2010 but his name was dropped on account of there being two gradings of “Average” for the two periods referred. Although, such entry was said to have been communicated to the petitioner vide Communication dated 18.02.2010 but the same was only received by the petitioner on 08.07.2010. The petitioner, nevertheless, on receiving the said communication submitted his representation for correction and up-gradation of his ACR to the respondent No. 3 through proper channel on 20.07.2010 and thereafter, again on 30.02.2011. The petitioner later also submitted several representations but the same were not considered by the respondent authorities concerned. The petitioner was consequently promoted to the post of Executive Engineer (Civil) on 20.06.2015 and by which time, those junior to him had already been promoted. He submits that the action of the respondent authorities in not considering the representation of the petitioner and at the same time, non-communication of the gradings given to him prior to the DPC held on 29.06.2010 is most arbitrary and illegal and therefore, the respondents should be directed to upgrade the gradings of the petitioner and give him all the consequential benefits. In support of his submissions, the learned counsel has relied upon the following authorities:
(2) Dev Dutt vs. Union of India and Others, (2008) 8 SCC 725
(3) Baidyanath Maharashtra vs. State of Orissa and Another, (1989) 4 SCC 664
(4) Bal Kishan vs. Delhi Administration and Another, 1989 Supp. (2) SCC 351
(5) Sant Kumar Singh vs. Union of India and Others, W.P. (C) No. 355/2012, dated 5.8.2014
5. Mr. M Kato, learned DSGI, on the other hand, submits that the petitioner has belatedly filed their writ petition and on this ground, the writ petition should be rejected. He further submits that the petitioner did not get the Bench mark of “Good” and therefore, he could not be considered for promotion to the post of Executive Engineer (Civil) although he was in the zone of consideration at the relevant time. He, further, submits that the representation of the petitioner dated 20.07.2010 was indeed considered by the authority concerned and the same was rejected vide Memorandum dated 25.05.2011. The learned DSGI by referring to Communication dated 10.09.2013 annexed to the counter affidavit filed by the respondent Nos. 1, 2 and 3 on 20.11.2009 submits that as per the guidelines issued by the Govt. of India, Ministry of Personnel, Public Grievance and Pensions, Department of Personnel and Training, there is no provision for reconsideration of up-gradation of below Bench mark grading given in the Annual Performance Appraisal Reports (APARs) by the competent authority when the competent authority had already taken a decision by rejecting the request of the Government servant. Therefore, since the representation of the petitioner had already been rejected by the competent authority, the subsequent representations submitt
Uncommunicated ACR entries violate the right to fair representation under Article 14 of the Constitution, necessitating communication of all gradings to public servants for promotion processes.
Downgrading an employee's performance ratings without communicating the reasons or providing an opportunity for a hearing violates the principles of natural justice. Uncommunicated adverse entries ca....
Denial of promotion based on non-communicated below benchmark ACRs violates Article 14, and such non-communication is arbitrary and illegal.
No prejudice has been caused to the petitioner, as the petitioner was considered for promotion. However, he was not promoted due to the petitioner not attaining the bench mark.
The Court established that non-communication of ACR gradings violates principles of natural justice and fairness in public administration.
The Court established that communication of ACR gradings is mandatory for fairness and transparency, enabling employees to contest their evaluations.
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