IMPORTANT POINT
Failure to communicate adverse remarks in the ACR to the employee prejudices the employee's right to make a representation, and the employer must act in accordance with the relevant legal principles established by the court.

JUDGMENT

1. The petitioner is aggrieved with the impugned order dated 28.01.2021, whereby in exercise of powers conferred by Rule 48(1) (b) of the Central Civil Service (Pension) Rules, 1972, the respondents compulsory retired the petitioner on completion of 30 years of qualifying service for pension. The petitioner had preferred a representation alleging the fact that he was medically fit and ACR also is up to the mark and that no service review was carried out to warrant the impugned action. However, it is submitted that no action was taken on the representation by the respondents. It is also the case of the petitioner that no adverse ACR had ever been communicated to him, and as such, the same could not have been taken for consideration in the review of his service beyond 30 years of qualifying service.

2. The respondents by the affidavit have contended that he was found ineligible for further retention in service due to lacking in ACR criteria, as he was found to have 'Not Recommended for promotion' in the ACR of 2017-2018 by his reporting officers. It is also contended that in view of this aspect, further retention in service was 'Not Recommended' by the Service Review Board and the impugned order was issued fixing his retirement date on 01.05.2021, giving him a clear 3(three) months notice.

3. It is submitted by Mr. B. Pathak, learned counsel for the petitioner that this case is covered by the judgment of a Division Bench of this Court dated 23.03.2022, passed in MC(WA) No. 64 of 2021 in the case of Union of India & Ors. v. Joseph K.S, and that the petitioner shall therefore be entitled to similar relief.

4. Having heard the submissions of the learned counsel for the parties and having examined the above noted judgment placed by the petitioner, this Court is in agreement with the counsel for the petitioner that the matter is covered by the said judgment. For the sake of convenience Paragraphs 44, 45 and 46 which are relevant are reproduced herein below:

'44. However, in the light of the dictum in Sukhdev Singh, the law of the land is now that all remarks in the ACR should be communicated to the concerned employee. That would preclude any fine distinction being made as to what may amount to be an adverse remark and what may not.

45. For the foregoing reasons, the failure on the part of the appellant-employer to communicate to the first respondent-writ petitioner that he had not been recommended for promotion in the year 2014-15 is seen to have occasioned grave prejudice to the writ petitioner as he was denied a chance to make a representation thereagainst. As a consequence of the writ petitioner not being recommended for promotion in the relevant year, the writ petitioner's fate was sealed and he was precluded from being considered for retention in service when the time to consider the same arrived. In effect, as a consequence of the applicable rules, it was known to the employer in 2014-15 that the writ petitioner would have to retire in 2017 but the writ petitioner had no inkling that his case for retention in service would not be considered at all since he had, admittedly, not been informed that he had not been recommended for promotion in 2014-15.

46. In view of the above and the additional reasons furnished, the order impugned does not call for any interference. The writ petition is allowed by permitting the writ petitioner to make a representation to the appellant-employer against the refusal to recommend him for promotion in 2014-15 (since the writ petitioner is now aware of such adverse action and any further formal communication thereof would be an idle formality). If the adverse action is reversed, even if he is not promoted as a consequence of such correction, it will be open to the appellant-employer to communicate a decision to the writ petitioner within a fortnight of receiving his representation as to whether to retain him in service for the full complement of time; or else, the employer may require the writ petit