Point of Law : Communication of entries in the ACRs and giving opportunity to represent against them is particularly important in higher posts which are in a pyramidical structure where often the principle of elimination is followed in selection for promotion.

JUDGMENT :

1. Through the medium of this petition, the petitioner is seeking to quash Office Memorandum No.BRDB/04/1826/EE(Civ)/2011/GE-1 dated 20.07.2011, issued by respondent No.1, whereby the representation filed by the petitioner for upgradation of below bench mark ACR gradings has been rejected. The petitioner is also seeking a direction to the respondents to grant him non-functional upgradation in the pay scale of Rs.37400 to Rs.67000 with grade pay of Rs.8700 per month in Pay Band (PB-4) with effect from 01.07.2006 on the analogy of similarly situated persons.

2. The facts-in-brief, as projected in the writ petition, are that the petitioner came to be appointed as Assistant Executive Engineer (Civil) in Border Roads Organization on 16.06.1992. He was promoted as Executive Engineer (Civil) on 13.02.2001. In the year 2011 he received a communication dated 26.04.2011 from HQ Director General Border Roads informing him that although his name was being considered for promotion against the post of Superintending Engineer (Civil), but since the Reviewing Officer and Accepting Officer has accorded below bench mark grading in his ACR for the period 01.04.2004 to 30.07.2007, as such he was asked to represent within 15 days from the receipt of said communication. Accordingly, the petitioner submitted the representation in the month of May, 2011, however, the respondents vide office memorandum No.BRDB/04/1826/EE(Civ)/2011/GE-1 dated 20.07.2011, impugned herein, rejected the same. Hence, the present writ petition.

3. Learned counsel appearing for petitioner argued that the respondents on similar issue had given promotion to one Bharat Singh Panwar, Executive Engineer (Civil) to the post of Superintending Engineer (Civil) after the writ petition being WP(C) No.2494/2011 filed by him was allowed by the High Court of Gauhati vide judgment and order 03.08.2012. Learned counsel further argued that the case of petitioner was considered by the Screening Committee by taking into account the adverse entries recorded in his ACRs, which were not communicated to him. The ACRs were communicated to the petitioner very belatedly and when represented against the same, it was rejected without any proper consideration. The procedure followed in grading him in his ACRs by the respective authorities was not inconformity with the applicable guidelines. On merit also, learned counsel argued that assessment of the petitioner was not proper and he could not have been graded below the bench mark.

4. Objections have been filed by the respondents averring therein that the ACRs of the petitioner from the years 2004 to 2007 are confidential in nature and the same are made keeping in view the performance of the petitioner as per the policy of the department. It is averred that the ACRs of the petitioner were not adverse but he was graded below bench mark grading, i.e., good. Further, it is averred that prior to issuance of DoP&T OM No.21011/1/2010-Estt.A dated 13.04.2010 there were no instructions for communication of ACR grading to the concerned officers. As such after the issuance of office memorandum dated 13.04.2010, the ACRs of petitioner, which were below bench mark, were communicated to him so as to enable him to submit his representations against the below bench mark grading for consideration by the competent authority. It is further averred that the representation of petitioner was considered and rejected by the competent authority. It is also averred that one Bharat Singh Panwar, Executive Engineer (Civil) was recommended for promotion to the post of Superintending Engineer (Civil) by a review DPC on the order of Gauhati High Court in WP(C) No.2494/2011 decided on 03.08.2012.

5. I have heard learned counsel appearing for the parties, considered their rival contentions and also perused the file.

6. The petitioner has questioned the recording of adverse entries in his ACRs for the period with effect from 01.04.2004 to 31.03.2005 (2004-05); 06.06.2005 to 31.03.