All ACR Entries Of Public Servant Must Be Communicated To Him With Reasonable Opportunity To Make Representation: Jammu & Kashmir High Court

The Jammu and Kashmir and Ladakh High Court has ruled that all entries in Annual Confidential Reports (ACR) of an employee, including adverse entries, should be communicated to him with reasonable opportunity to make a representation against it.

The observations were made by Justice Wasim Sadiq Nargal while hearing a plea in terms of which the petitioner sought directions upon the respondents to promote him to the position of Additional DIG from April 8, 2022, the date on which his juniors were promoted alongside consequential benefits, besides annulment of an adverse entry from the year 1998-1999.

The petitioner in this case an Assistant Commandant was appointed in September 1973 and later promoted to the posts of Deputy Commandant and 2nd in Command in 1991 and 1990 respectively. He was selected for Special Protection Group (SPG) duty for the Prime Minister's security and was later promoted to the positions of Additional DIG and Deputy Inspector General in the Border Security Force (BSF).

The petitioner claimed that the post of Additional DIG was upgraded to DIG, and the respondents (4 to 15) who were junior to him in the rank of Commandant were promoted before him. The petitioner's case was considered by the Departmental Promotion Committee (DPC) for promotion to Additional DIG, but he was superseded and not included in the select panel. This happened in two successive DPC meetings and petitioner claimed that his downgraded Annual Confidential Report (ACR) for the year 1998-1999 hindered his promotion.

He filed representations to various authorities, but his grievances were not addressed and hence this petition was filed.

The petitioner argued that in the subsequent vacancy year 2003-2004, the petitioner's ACRs for the years 1997-98, 1998-99, 1999-2000, and 2000-2002 were considered by the Departmental Promotion Committee (DPC). Since the ACRs for the year 1998-1999 were downgraded from "Very Good" to "Good" without any reason recorded by the Accepting authority this resulted in him being superseded and not recommended for promotion, he argued.

On the other hand, the respondents submitted that ACR which has been downgraded to “Good” does not fall within the ambit of adverse remarks and thus, there was no requirement under law to communicate the same to the petitioner.

Justice Nargal observed,

"I do not agree with the stand taken by the respondents in the counter affidavit that downgrading of the ACR from “Outstanding” to “Good” fall outside the purview of adverse remarks, rather, a duty was cast upon the respondents to have communicated the said downgraded ACR to the petitioner which in a way has denied the promotion to the petitioner and was a decisive factor from ousting the petitioner of being promoted."

Reliance was placed on Dev Dutt vs. Union of India where Supreme Court held that every entry (and not merely a poor or adverse entry) relating to an employee under the State or an instrumentality of the State, whether in civil, judicial, police or other service (except the military) must be communicated to him, within a reasonable period, and it makes no difference whether there is a bench mark or not.

"The grievance of the petitioner that the downgrading of the ACR for the year 1997-98 from “Very Good” to “Good” and the entry of the ACR for the year 1998-1999 downgrading from “Very Good” to “Good” were never communicated to the petitioner is found to be true and cannot sustain the test of law for the reason that no reasons for the change have been mentioned in the record for such downgrading in the personal file of the petitioner," the bench maintained.

It was a duty cast upon the respondents to have communicated the said downgraded ACR to the petitioner which in a way has denied the promotion to the petitioner and was a decisive factor from ousting the petitioner of being promoted, the bench reasoned.

Based on these expositions the bench found merit in the petition and directed the respondents that the “Good” entry be communicated to the petitioner within a period of one month. On being communicated the entry, the petitioner may make a representation, if he so chooses, against the said entry within one month and the said representation will be decided within one month thereafter, the bench concluded.

Case Title: Ashok Kumar Sharma Vs Union of India.

Citation: 2023 LiveLaw (JKL) 138

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