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.

JUDGMENT :

SOUMITRA SAIKIA, J.

Heard Mr. IH Saikia, learned counsel for the petitioner. Also heard Mr. H Gupta, learned Central Government Counsel, for the respondents.

2] The petitioner is a permanent resident of the state of Rajasthan and he was serving as an Executive Engineer (Civil) under the Border Roads Engineering Service in the General Reserve Engineering Force (GREF), 14 Border Roads Task Force under Project Vartak, C/o.99 APO, at the time when the writ petition was filed.

3] The essential facts necessary for deciding the matter is that the petitioner was initially appointed as an Assistant Executive Engineer (Civil) on 18-05-2002 in the General Reserve Engineering Force in Border Roads Engineering Service. The respondent Department had initiated the process for promotion to the post of Executive Engineer (Civil) from the feeder category of Assistant Executive Engineer (Civil) for the vacancy year 2010-11. The petitioner although eligible for being promoted to the next higher post from Assistant Executive Engineer (Civil) to the post of Executive Engineer (Civil), he was not promoted to the next higher post on the ground of having below benchmark grading (BBM) for the relevant years under consideration in his ACRs. According to the petitioner for promotion in the vacancy year of 2010-11 the relevant years under consideration are 2004-05, 2005-06, 2006-07, 2007-08, 2008-09. According to the petitioner for the year 2004-05, his ACR gradings were ‘partly good’ and ‘partly very good’. For the year 2007-08 and 2008-09, his ACR gradings were ‘very good’ and ‘good’ respectively. However, for the years 2005- 06 and 2006-07 his ACR gradings were “average”. According to the petitioner because of 2 (two) average gradings for the years 2005-06 and 2006-07 he was considered having below benchmark gradings and therefore, he was not considered for promotion. According to the petitioner, these 2 (two) gradings of ‘average’ for the years 2005-06 and 2006-07 were adverse remarks and therefore, were required to be communicated to the petitioner enabling him to represent before the higher authority before his case was considered for promotion by the Departmental Promotion Committee (DPC). At the time when the gradings of “average” was awarded before the matter being considered by the Departmental Promotion Committee (DPC), the respondent authorities did not communicate these gradings to the petitioner and therefore, he was deprived from filing appropriate representations before the authorities. There was no warning or no performance enhancing counseling, neither verbal nor written or any intimation was issued to the petitioner for enhancement of his performance for the same 2 (two) periods. Subsequently, the petitioner after having received the impugned ACRs filed representation on 20-07-2010, praying for upgradation of the below benchmark gradings received in the Annual Confidential Reports (ACRs) for the year 2005-06 and 2006-07. As the said representation was not considered, the petitioner filed a supplementary representation on 30-03-2011. The respondents, however, did not consider the claims of the petitioner and by order dated 25-11-2011 the claim of the petitioner was rejected. Subsequently, the DPC again considered the cases of eligible officers in its meetings held on 13-06-2011 and 23-09-2011 and thereafter, promotional orders were issued on 24-06-2011 and 05-10-2011. However, the case of the petitioner was not recommended for promotion because of the below benchmark gradings received in the ACR for the year 2005-06 and 2006-07. Being aggrieved, the petitioner filed an appeal dated 25- 11-2011 before the authorities concerned. Subsequently, again on 04-01-2013, another DPC was held, however, the case of the petitioner was not recommended, even though some other similarly situated candidates having below benchmark gradings were recommended for promoti