Un-communicated adverse remarks in the ACR cannot be considered for denying promotion, and the employee must be given an opportunity for representation.

SANJEEV PRAKASH SHARMA, J.

1. The petitioner by way of this Writ Petition has prayed for issuance of a Writ in the nature of certiorari for quashing of the order dated 22.05.2000 (Annexure P-5) whereby promotion has been granted to her juniors.

2. Learned counsel for the petitioner submits that the petitioner was working as a Mistress and as per the seniority list, she was placed at Sr. No.4557. She was to be considered for the promotion to the post of Head Mistress but her case was not considered and persons junior to her, who were at Sr. No.4578 and 4833, were promoted vide impugned order dated 22.05.2000. Aggrieved thereof, present Writ Petition has been preferred by her.

3. Learned counsel for the petitioner submits that the petitioner has had a very good service record to her credit except two average ACRs which were recorded by the then Head Master, Jaswinder Singh, for the years 1997-98 and 1998-99, merely because the petitioner had objected the concerned Head Master to unauthorized and illegal withdrawals from the P.T.A. funds, resulting in mentioning of remarks in her ACRs, but overall grading was given to the petitioner was average and thus, there was no adverse remark which could have been taken into consideration to deny her promotion.

4. The respondents have filed their reply and stated that the case of the petitioner was also considered for promotion, but on account of adverse remarks in her ACR for the years 1997-98 and 1998-99, she was not granted promotion. It is stated that as per the Government Policy and instructions dated 21.07.1997, ACRs for the only last 5 years were required to be checked. It is also stated that the adverse remarks in the ACR for the year 1997-98 were conveyed to the petitioner on 26.05.2000. The said aspects have been conveyed to the petitioner while rejecting her representation on 09.04.2004. This Court had directed the respondents to file an additional affidavit wherein the same aspect has been reiterated.

5. In replication, the petitioner has stated about her gist of ACR remarks for the last 10 years which are as under:-

6. In the years 1997 to 1999, she has been shown as average and in the year 1999-2000, there is a certificate issued to her to the effect that no complaint or enquiry was pending against her and that she bears a good moral character. The Special ACR has been shown as “very good” and it has also been mentioned that she is punctual, honest, hardworking and reliable. In the year 2000-2001 also, her ACR reflects that she has been given remark “very good”. Thus, this Court finds that her ACRs have been consistently “very good” except for the two years i.e.1997-98 and 1998-99.

7. Lowering down of the ACRs of the petitioner from “very good” to “average” would have to be conveyed to the petitioner giving the reasons for the same.

8. In Dev Dutt Vs. Union of India and Others; (2008) 8 SCC 725, the Supreme Court has held has under:-

“13. It has been held in Maneka Gandhi vs. Union of India & Anr. AIR 1978 SC 597 that arbitrariness violates Article 14 of the Constitution. In our opinion, the non-communication of an entry in the A.C.R. of a public servant is arbitrary because it deprives the concerned employee from making a representation against it and praying for its upgradation. In our opinion, every entry in the Annual Confidential Report of every employee under the State, whether he is in civil, judicial, police or other service (except the military) must be communicated to him, so as to enable him to make a representation against it, because non-communication deprives the employee of the opportunity of making a representation against it which may affect his chances of being promoted (or get some other benefits). Moreover, the object of writing the confidential report and making entries in them is to give an opportunity to a public se