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Thursday, August 27, 2015

appellant being denied of the promotional benefit, even though the order of the respondent No. 4 was set aside by the judgment and decree in Civil Suit no. 70 of 2001. The action of respondent No. 4 in denying the promotional benefit to the appellant is tainted with malafides. It can further be observed from the record that it was respondent no.7 who had filed the reply on behalf of all the respondents in the writ petition proceedings before the High Court. It is important to note at this stage that respondent No. 7 happens to be an officer junior to the appellant, who was promoted to the post in question. The non-filing of written statement by respondent No. 4 traversing the allegations of malafide against him proves the malafide intention on part of the respondent No. 4. Therefore, there was no justification for the respondent No. 4 in denying the promotional benefit to the post of Battalion Commander to the appellant and. The learned senior counsel on behalf of the appellant has rightly placed reliance on the case of Sukhdev Singh (supra), wherein this Court has lucidly laid down the law pertaining to communication of ACR. It was held that if the ACR of the officer concerned is to be used for the purpose of denying promotion, then all such ACRs were required to be communicated to him, to enable him to make a representation against his adverse entries made in the ACRs. As per the record submitted by the respondents, the appellant was given grade ‘A+’ for the year 2001-2002, but only 1 mark was assigned. According to the executive Instructions, the grade ‘A+’ is to be assigned 4 marks. Accordingly, if 4 marks are assigned for the ACR of the appellant for the period 2001-2002, then he would have scored 12 marks at the time of consideration for promotion in the year 2003, whereas admittedly, the appellant was required to achieve only 10 marks in order to be promoted to the post of Battallion Commander. Hence, if the calculation of marks made by the respondents on the various aspects in the ACR of the appellant is believed to be true, then also he has achieved the required benchmark. The action of the respondent No. 4 in deliberately ignoring the claim of the appellant is vitiated in law as the same is contrary to the Rules and records of ACR for the relevant period and Instructions issued by the State Government laying down certain guiding principles. Therefore, the order of denial of promotion to the appellant, which has been affirmed by the High Court in its judgment and order passed in the Writ Petition and Review Application is liable to be set aside. For the reasons stated supra, we pass the following order:- We set aside the impugned judgment and order passed by the High Court in both the Civil Writ Petition and the Review Application and also the order of denying the promotional benefit by the respondents-Department to the post of the Battalion Commander from the year 2001-2002; Further, we direct the respondent Nos. 1 to 5 to reconsider the claim of the appellant in the light of our findings and reasons recorded on the contentious factual and legal aspects so that he could get higher post of Battalion Commander notionally to get pensionary benefits as he has been prematurely retired from service on 31.7.2007; and The said direction shall be complied with within 8 weeks from the date of the receipt of the copy of this order and extend all the consequential benefits for the purpose of fixing his pensionary benefits and other monetary benefits for which he is legally entitled to and submit the compliance report to this Court. The appeal is allowed in the above said terms with cost of Rs.10,000/- payable to the appellant by respondent Nos. 1 to 4.



                         IN THE SUPREME COURT OF INDIA
                          CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL NO. 6532   OF 2015
                (Arising out of S.L.P. (C) NO. 1640 of 2014)

DALJIT SINGH GREWAL                   ………… APPELLANT

                                     Vs.

STATE OF PUNJAB & ORS.             ………… RESPONDENTS


                               J U D G M E N T


V. GOPALA GOWDA, J.


      Leave granted.
This appeal is directed  against  the  impugned  judgment  and  order  dated
27.08.2013 passed by the High Court of Punjab &  Haryana  at  Chandigarh  in
Review Application No. 208 of 2013 (O&M) in Civil Writ Petition No. 5643  of
2004 whereby the High Court did not find any merit in  the  application  and
dismissed the same.

The brief facts of the case are mentioned   below :-

The  appellant  joined  the  Punjab  Home  Guards  Department  as   District
Commander in the year  1993  after  being  selected  through  Punjab  Public
Service Commission under the Punjab Home Guard  Class-II  Rules,  1988.  The
work of the appellant was appreciated by  the  ADGP,  Railways  when  a  big
tragedy on the railway tracks was averted as a result of  his  efforts.  His
work and conduct was considered as excellent. The  dispute  in  the  instant
case arose when he received a letter dated 28.06.2000,  wherein  the  Annual
Confidential Report (ACR) for the period 1.07.1999 to 31.03.2000  rated  his
performance as ‘average’. The D.G.P-cum-Commandant General had  written  the
following remarks:
“An mediocre officer, whose performance was  barely  satisfactory.  His  own
officers  intrigue  and  directly  make  unfounded  allegations.  This  work
environment, he has not been able to change.”


The said assessment of his performance by the Deputy Commandant General-cum-
Deputy Director, Civil Defence and the D.G.P-cum- Commandant  General,  Home
Guards & Director Civil Defence led the appellant to place a  representation
dated 07.07.2000 before the  DGP-cum-Commandant  General,  Home  Guards  and
Director Civil Defence, Punjab- respondent No.5, requesting  the  supply  of
documents on the basis of which his conduct  and  diligence  was  graded  as
‘average’. But no  satisfactory  response  was  received  by  the  appellant
despite having been  made  reminder  representations  dated  18.08.2000  and
25.08.2000 for supply of the said  documents.  On  29.12.2000,  Instructions
were issued  by  the  Department  of  Personnel,  State  Government,  Punjab
whereby a ‘benchmark system’ was introduced for  promotion  to  Group-A  and
Group-B posts.

On 15.03.2001, the appellant submitted  a  detailed  representation  to  the
Secretary, Personnel,  Punjab,  Civil  Secretariat-respondent  No.3  herein,
requesting him to re-consider the said Instructions on the ground  that  the
same were violative of principles of natural justice. He also stated in  the
representation that the recording of adverse entries  in  the  ACR  must  be
conveyed to the concerned officers so as to enable  them  to  improve  their
work accordingly. On 07.05.2001, the appellant received a  letter  from  the
Under Secretary, Department of Home Affairs and Justice, informing him  that
his representations dated 18.08.2000 and 25.08.2000 to  the  Government  had
been considered and rejected.

The appellant  again  made  a  representation  on  31.05.2001  to  the  then
Principal Secretary, Department of Home and  Justice,  requesting  that  the
adverse remarks made in his ACR for the year 1999-2000 be expunged  so  that
he could be promoted to the post of Battalion Commander.

On 30.06.2001, the appellant became eligible for promotion to  the  post  of
Battalion Commander after completion of 8 years of  service  as  per  Punjab
Home Guard Class-I Rules, 1988. Rule 8(2) of the  Rules  provides  that  the
District Commanders  having 8 years of experience are entitled to  promotion
to the post of Battalion Commander on the basis of  seniority-cum-merit  and
that no person could claim promotion on the basis of seniority alone.

Ultimately, having received no satisfactory  response  from  the  respondent
Nos. 3 to 5 despite making  several  representations,  the  appellant  filed
Civil Suit No. 70 of 2001 before the Civil  Judge  (Sr.  Div.),  challenging
the adverse entries made in his ACR for the year 1999-2000.

Meanwhile, the representation of the appellant was  rejected  by  respondent
No. 4 by way of a non-speaking order on 08.08.2001.

By letter No.4/6/2000-3PPI/13720 dated 06.09.2001, the  government  modified
its earlier Instructions dated 29.12.2000, whereby the benchmark system  was
introduced for  promotion  to  the  Group-A  and  Group-B  posts  which  was
approved and  published  by  the  Government  of  Punjab  on  18.12.2001.  A
conscious policy  decision  was  taken  to  set  up  Departmental  Promotion
Committees for considering cases  of  eligible  officers  for  promotion  to
Class-I and Class-II (Group ‘A’ and Group  ‘B’)  posts,   which  inter  alia
reads thus:-

“……a…
 ……b…

|NO. OF VACANCIES |NORMAL ZONE         |ZONE FOR            |
|                 |                    |CONSIDERATION  SC/ST|
|1                |5                   |5                   |
|2                |8                   |10                  |
|3                |10                  |15                  |
|4                |12                  |20                  |
|                 |Twice the number of |5 times number of   |
|                 |vacancies plus  4   |vacancies           |

               xxx         xxx          xxx

(c) It has been decided to retain the  numbering  system  of  evaluation  of
ACRs as contained in the instructions dated 29.12.2000 which is as under:-

|Outstanding                 |4 MARKS                   |
|Very good                   |3 MARKS                   |
|Good                        |2 MARKS                   |
|Average                     |1 MARK                    |

ACRs for the last 5 years are to be taken into consideration for  promotion.
The criteria for promotions will be as under:-

1….

2. For  promotion  to  posts  falling  in  Group  ‘A’  other  than  Head  of
Department, the minimum bench mark will  be  Very  Good  with  at  least  12
marks. Amongst those meeting this criteria, there would be supersession.

3. In the case of promotion to posts falling in Group ‘B’ the minimum  bench
mark will be “Good” and there  would  be  no  supersession  i.e.  promotions
would be made strictly on seniority-cum-merit.

     XXX             XXX                XXX..”


By the judgment and order dated 15.03.2002, the  Civil  Judge,  (Sr.  Div.),
Patiala in Civil Suit No. 70 of 2001 decreed  the  suit  in  favour  of  the
appellant. The adverse remarks recorded against the  appellant  in  the  ACR
for the period 01.04.1999 to 31.03.2000 were expunged and all  consequential
benefits were granted to the appellant.

Since no appeal was filed by the respondents against the said  judgment  and
decree  of  the  Civil  Judge  (Sr.  Divn.),  the  appellant  requested  the
respondents  vide  representation  dated  08.05.2002  to  consider  him  for
promotion to the post of Battalion  Commander.  Thereafter,  despite  having
submitted representations dated 10.05.2002 and 20.06.2002 to the  respondent
No. 4, no action was taken to implement the decree passed in favour  of  the
appellant.

In the meanwhile, the Division Bench  of  High  Court  passed  an  order  on
14.01.2003 in CWP No. 4491 of 2001 and CWP No. 11011 of 2001 (filed by  some
other petitioners, who had also challenged  Instructions  dated  29.12.2000)
issuing direction to the  State  Government  for  considering  the  case  of
petitioners therein, by ignoring the Instructions dated 29.12.2000.

Two more representations were  made  by  the  appellant  on  31.03.2003  and
09.04.2003 to respondent No. 4, but no action was taken.

Once again, having found that his performance was shown as ‘average’ in  the
ACR for the  period  01.04.2001  to  31.03.2002  which  was  graded  by  the
respondent  No.4,  the  appellant  submitted   another   representation   on
16.04.2003 for upgrading his ACR for the period 1999-2000 and  2001-2002  as
his controlling officer i.e. Division Commander has awarded  him  “A”  Grade
and Review Authority i.e. Deputy Commandant General also  awarded  him  “+A”
which entries were accepted by the final authority i.e. Commandant  General,
Home Guard-respondent No. 5. He also mentioned in  the  representation  that
he was shocked to find that his ACR for the period 2001-2002 was  downgraded
by  respondent  No.  4  without  assigning  any  reason  or   affording   an
opportunity of being heard. As per the  departmental  procedure,  Rules  and
Instructions, the then Principal Secretary, Home who has not seen  the  work
and conduct of the appellant, could not have downgraded his  performance  by
making an adverse entry in his ACR. However, no action  was  taken  on  this
representation made by him.

As per the Instructions dated 06.09.2001, at least 12  marks  were  required
for promotion to the post of Battalion  Commander.  The  appellant  was  not
considered for promotion even after having a decree passed in his favour  by
the Civil Court which was deliberately not placed  before  the  Departmental
Promotion Committee (hereinafter “the DPC”) for its  consideration.  Due  to
the adverse remarks in the ACR for the year 2001-2002,  the  appellant  fell
short of this benchmark.

The appellant again made representations dated 10.09.2003 and 15.09.2003  to
the respondent No. 4 for implementing the judgment and decree passed by  the
Civil Judge (Sr. Div.) in his favour and requested them to  promote  him  to
the post of Battalion Commander. He also got a legal notice  issued  to  the
respondents on 06.10.2003. The respondents deliberately ignored the  request
of the appellant by placing reliance on the Instructions referred  to  supra
and the non-upgraded ACRs for the year 1999-2000, 2000-2001  and  2001-2002,
though the suit was decreed in his favour.

On 16.02.2004, the appellant issued a legal notice to the respondent Nos.  4
and 5 for upgrading the ACR for  the  period  2001-2002  from  ‘Average’  to
‘Excellent’.

A similar issue  arose  for  consideration  of  promotion  and  quashing  of
Instructions  regarding  the  benchmark  method  introduced  by  the   State
Government, Department of Personnel in the case  of  Balbir  Singh  Bedi  v.
State of Punjab & Ors.[1], wherein this Court upheld  the  validity  of  the
executive Instructions dated 29.12.2000 and 06.09.2001, holding  that  these
Instructions are nothing but a codification of  directions  issued  by  this
Court regarding promotions and the  criteria  of  seniority-cum-merit  in  a
catena cases.

The appellant made a complaint on 11.03.2004 to the respondent no.4  seeking
that action be taken against the persons who were tampering with  the  ACR’s
to harm the service career of the appellant.

Ultimately, the appellant filed CWP No. 5643 of 2004 before the  High  Court
challenging the legality and validity of the Instructions and  orders  dated
02.05.2003 and 30.01.2004. The said petition was dismissed by  the  Division
Bench of the High Court on 02.04.2004.

Meanwhile, the appellant was supplied certain documents under  the  RTI  Act
which had material effect on the merits of his  case.  The  appellant  filed
SLP (C) No. 14964 of  2004  against  the  order  of  the  High  Court  dated
02.04.2004. This Court granted leave in  the  said  SLP  and  the  same  was
converted into Civil Appeal No. 5192 of 2004 and was directed  to  be  heard
along with the case of Balbir Singh Bedi referred to  supra.  The  case  was
dismissed, but the appellant was granted liberty by this  Court  to  file  a
Review Petition before the High Court.

The appellant approached the High Court after being granted liberty by  this
Court in the above referred case and a Review Application No.  208  of  2013
was filed for recall of order dated 02.04.2004. The High Court having  found
no merit in the Review Application dismissed the same vide its  order  dated
27.08.2013. On the issue of the performance of the  appellant  being  graded
as ‘average’, the High Court observed that though it was  not  clear  as  to
whether the adverse entries in the ACR  for  the  period  of  01.04.2001  to
31.03.2002 were conveyed to  the  appellant,  yet  it  was  clear  from  his
representations that the contents of the reports were in his  knowledge  and
he had specifically represented against  its  downgrading.  The  High  Court
further held that the appellant could not contend  that  the  adverse  ACR’s
were made behind his back. Hence, the present appeal  is  filed  questioning
the correctness of the action of the respondents in not giving promotion  to
the appellant to the post of Battalion Commander though he was entitled  for
the same and  also  challenged  the  judgment  and  orders  passed  in  writ
petition and also review petition.

Mr. Rakesh Kumar Khanna, learned senior counsel appearing on behalf  of  the
appellant has contended that the High Court erred in not complying with  the
observations made by this Court in Civil Appeal No. 5192  of  2004,  wherein
this Court directed that the additional documents obtained by the  appellant
under the RTI Act were to  be  considered  by  the  High  Court.  Thus,  the
appellant withdrew the Civil Appeal No.5192  of  2004  and  filed  a  Review
Application before  the  High  Court  in  order  to  produce  the  documents
obtained by him so that the same could be considered by the High  Court  and
pass appropriate orders.

It is also contended by the learned  senior  counsel  that  the  High  Court
failed to consider the representation  dated  16.04.2003  submitted  by  the
appellant to the  respondent  No.  4,  wherein  he  had  requested  for  the
implementation of the judgment and decree dated  15.03.2002  passed  in  the
Civil Suit No. 70 of 2001.

It is further contended by the learned  senior  counsel  on  behalf  of  the
appellant that the High Court  should  have  taken  into  consideration  the
latest judgment of this Court rendered in  the  case  of  Sukhdev  Singh  v.
Union of India[2] wherein it was held that all the ACRs whether poor,  fair,
average,  good  or  very  good,  must   be   apprised   to   the   concerned
employee/officer within the  stipulated  time  so  that  he/  she  can  take
suitable action if he/she is aggrieved by the same. While on the  one  hand,
the High Court presumed that the appellant had knowledge of the  downgrading
in his ACR, at the same time it was also observed  that  it  was  not  clear
whether the downgrading was conveyed to the appellant.
It is further contended by the learned senior counsel  appearing  on  behalf
of the appellant that the High Court should have  considered  the  law  laid
down in the case of Gurdial Singh Fiji v. State of Punjab[3],  wherein  this
Court has specifically held that the adverse remarks made in the ACR  cannot
be acted upon by the Authority to deny promotion to a post unless they  have
been communicated to the concerned person.

It is further contended by the learned senior counsel  that  the  respondent
No. 4 could not have downgraded his ACR and that too without  conveying  the
same to him, as he had not personally seen the work of the appellant.  There
should have been some reason for the respondents to make adverse entries  in
his ACR’s for the relevant periods by changing the original entries made  by
the Reporting Authority-respondent No. 5. The adverse entries  made  in  the
ACR’s of the appellant for the relevant periods  were  not  communicated  to
him. If there were any adverse entries in the ACR’s, the  same  should  have
been  communicated  to  the  appellant  to  enable  him   to   improve   his
shortcomings or submit a representation against the adverse entries. It  was
further contended by the learned senior counsel that the favourable  entries
recorded in the  ACR’s  for  the  relevant  periods  were  deliberately  not
produced before the Selection Committee or DPC by the  respondents  so  that
the appellant would not be considered for  promotion  and  promoted  to  the
promotional post, which aspect of the matter should  have  been  taken  into
consideration by the High Court while  passing  the  impugned  judgment  and
order in the writ petition and also  in  the  order  passed  in  the  review
application.

On the other hand,  Mr.  Nikhil  Nayyar,  the  learned  Additional  Advocate
General appearing on behalf of the respondent Nos. 1 to  5,  has  sought  to
justify the impugned judgment and order contending that the  same  is  legal
and justifiable on facts and also in law.  Therefore,  the  High  Court  has
rightly  dismissed  the  Writ  Petition  and  Review  Application   of   the
appellant. Hence, the same does not warrant interference by this Court.

It is further contended by the learned Additional Advocate General that  the
DPC considered the ACRs of the past five years of the appellant and  on  the
basis of final marks obtained by him for the relevant ACRs,  his  claim  was
not considered by the DPC for promotion as he failed to meet  the  benchmark
criteria laid down as  per  Instructions  dated  29.12.2000  and  06.09.2001
issued by the respondent No. 3. Further, even the  Head  of  the  Department
did  not  issue  the  requisite  integrity  certificate  in  favour  of  the
appellant.

It was further contended by the learned Additional Advocate General that  in
an earlier round of litigation before this Court in a  similar  matter  i.e.
Balbir Singh Bedi (supra), this  Court  upheld  the  validity  of  benchmark
Instructions dated 29.12.2000 and 06.09.2001  issued  for  consideration  of
eligible officers for promotion to the posts of Class I and II viz. Group  A
and Group B and therefore, the same cannot be ignored. Thus,  the  appellant
cannot be promoted to the post of Battalion Commander.

Further, it was contended by the learned Additional  Advocate  General  that
there were no adverse remarks in the ACRs of  the  appellant  for  the  year
2000-2001 and 2001-2002, which were required to be apprised to  him  and  he
was also aware of his adverse ACRs for the years  1999-2000.  Therefore,  it
was rightly held by the High Court that the contents of those  reports  were
within his knowledge. Therefore, there is no error of law committed  by  the
High Court.

It is further contended by the learned Additional Advocate General  that  it
was not right on the part of the appellant to request the respondent  No.  4
to upgrade his ACRs and consequently to promote him to the promotional  post
retrospectively,  which  is  impermissible  in  law.  In  support   of   his
submission he placed reliance on the case of Dev Dutt v. Union  of  India  &
Ors.[4], wherein this Court had directed the appellant  therein  to  make  a
representation before the concerned authorities to consider  his  claim  for
promotion retrospectively.

After hearing the learned counsel for both the parties and  considering  the
facts and rival legal  contentions  urged  by  them  including  the  written
submissions submitted by the learned counsel for the parties and on  perusal
of record, we  pass  the  following  order  in  this  appeal  on  merits  by
assigning the reasons as mentioned herein below.

The promotion of the appellant to the post of Battalion Commander  from  the
post of District Commandant is governed by Rule  8(1)(2)(i)  of  the  Rules.
The aforesaid rule contemplates that 75% of the  promotional  posts  of  the
Battalion Commander be filled up by promotion amongst the  Battalion  second
in command. The legal requirement for promotion to  the  post  of  Battalion
Commander is that the claimant  should  have  been  working  as  a  District
Commandant for a  period  of  8  years  and  the  appointment  to  the  said
promotional post shall be made by the Competent Authority on  seniority-cum-
merit basis. No person shall be entitled to claim promotion on the basis  of
seniority alone. As per the Punjab State Government Instructions  issued  on
06.09.2001, certain guidelines have been laid down for DPC to  consider  the
cases of promotion to the post of Class-I and  Class-II  namely,  group  ‘A’
and ‘B’ posts.  As  per  the  said  guidelines,  an  eligible  candidate  is
promoted on the basis of the seniority-cum-merit criteria,  where  merit  is
determined on  the  basis  of  benchmark  awarded  to  the  various  aspects
contained in the ACR of the officer, wherein marks are awarded against  such
entries made in the ACRs of the officers concerned for the relevant period.

Further, as per the records obtained by the appellant from  the  respondents
under the RTI Act at the time of his claim for  promotion  to  the  post  of
Battalion Commander was first considered,  his  ACRs  from  year  1996  were
considered.  The  Instructions  dated   29.12.2000   would   be   applicable
prospectively to the ACRs of the appellant for relevant periods  which  were
prepared  after  those  Instructions   were   issued.   According   to   the
Instructions, officers obtaining 0-14 marks out  of  a  total  of  20  marks
would be graded over  all  ‘Good’.  Thus,  the  appellant  was  entitled  to
promotion as he had been awarded 10 marks as per the proceedings of DPC.

The High Court in the impugned judgment  further  observed  that  the  final
reporting authority had downgraded the appellant  as  an  ‘average’  officer
for the above relevant period.  As  per  the  executive  Instructions  dated
10.01.1985 issued by the State Government, the  Commandant  General  is  the
final Authority for the rank of  the  District  Commander.  That  being  the
factual position, the downgrading of the performance  of  the  appellant  in
his ACR for the above relevant period by the respondent No. 4 was not  valid
as the same was done without  any  authority  and  competence.  The  adverse
entries in the ACR have deprived the appellant of his right of promotion  to
the post in question and therefore, the said adverse  entries  in  the  ACRs
against the appellant are not legal and valid. The ACR for the period  2000-
2001 is extracted hereunder:
|Integrity                                     |Correct                 |
|Conduct                                       |Very Good               |
|Health and Activeness                         |Very Good               |
|Personality and Initiative                    |Very Good               |
|Knowledge and Intelligence                    |Very Good               |
|Dependability/ reliability                    |Fully Dependable        |
|Power to Command                              |Very Good               |
|Efficiency in Parade                          |Correct                 |
|Moral courage and efficiency to expose corrupt|Very Good               |
|subordinates                                  |                        |
|Impartiality                                  |Impartial               |
|Knowledge of English                          |Very Good               |
|Knowledge of Punjabi and  Hindi and to make   |Very Good               |
|drafts in these languages                     |                        |
|Knowledge of Civil rules and regulations, Home|Very Good               |
|Guard Act, administration instructions and    |                        |
|circulars                                     |                        |
|Behaviour and to work with  each other        |Very Good               |
|Defect, if any, whether brought to his notice |Not Applicable          |
|Whether fit for promotion                     |At his own term         |
|Whether he disposes his work in Punjabi       |Yes                     |
|General Remarks                               |He is very good and     |
|                                              |responsible officer     |



  A perusal of the ACR for the period  2000-2001  reveals  that  though  the
general remarks stated that  “He  is  very  good  and  responsible  officer”
respondent No. 4 had  given  a  grade  which  read,  “I  agree.  An  average
officer”. The said entry shows that he had agreed to all the remarks of  the
ACR given in respect of columns 1 to 18  for  that  year  by  the  Competent
Accepting Authority, but he further stated assessed the  officer  to  be  an
‘average’ officer without assigning any reason  whatsoever  apart  from  his
competence to make such adverse entries. The overall grading of the  ACR  is
based upon the observations  made  by  the  Reporting  Authority,  Reviewing
Authority and final Accepting Authority. As per  the  entries  made  by  the
respondent No. 4, he had agreed to the  overall  grading  as  given  by  the
Accepting Authority. In such a  case,  he  could  not  have  downgraded  the
overall grading in  the  ACR  by  using  the  words  “an  average  officer”.
Further, if the comments made on 20.05.2004 by the respondent No. 4  on  the
ACR for the year 2000-2001 are being sought to justify the stand  of  denial
of  promotion  to  the  appellant  to  the  post  in  question,   then   the
clarification needs to take effect from that date, i.e 20.05.2004.  In  such
a case, the appellant was to be assigned 3 marks  as  per  the  instructions
for the year 2003, when he was ignored  for  the  promotion  for  the  first
time.

A perusal of the copy of the ACR for the period 2003-2004  reflects  a  true
picture of the injustice that has been perpetrated  against  the  appellant.
The ACR has been written by Mr. Tejinder Singh, respondent  No.  4  who  was
the Reporting Authority as the Divisional Commandant. The very same  officer
was also the Reviewing Authority as Deputy Commandant General. Further,  the
same officer also happened to  be  the  Final  Accepting  Authority  as  the
Commandant General, as is evident from his  comment  dated  30.09.2004.  The
fact that in the said year also the performance of the  appellant  had  been
graded  as  ‘average’  clearly  reveals  the  malafide  intention   of   the
respondent nos.1-4 in deliberately denying the promotion  to  the  appellant
to the post in  question.  According  to  the  respondents  themselves,  the
executive Instructions dated 06.09.2001 have  not  been  superseded  by  any
other Instructions or rules framed by  the  competent  authority.  If  these
illegal downgrading entries in the ACR for the relevant period are  ignored,
then the appellant would attain 14 marks.  As  per  the  Instructions  dated
06.09.2001, 12 marks were required for promotion to  the  post  as  per  the
benchmark fixed.

Further, the adverse remarks for  the  period  1999-2000  were  conveyed  to
appellant vide communication dated 28.06.2000 by the  D.G.P-cum-  Commandant
General. The representations dated 18.08.2000 and  25.08.2000  made  by  the
appellant against the same were submitted to  respondent  No.  4.  The  said
representation was rejected on 07.05.2001. The appellant had challenged  the
same by filing Civil Suit No. 70 of 2001, wherein the respondent No.  4  was
impleaded as defendant No. 3. The civil suit was decreed  on  15.03.2002  in
favour of the appellant. The said judgment and decree passed  in  favour  of
the appellant has not been implemented by  the  respondent  Nos.  4  and  5,
despite having attained finality, which clearly reflects the fact  that  the
respondent No.4 was not fair in considering him for promotion  to  the  post
of Battalion Commander as provided under Rule 8(2) of the  Rules.  According
to the Rules, the appointment to the  promotional  post  shall  be  made  on
seniority-cum-merit basis. As per the ACRs placed on record,  the  appellant
has fulfilled the aforesaid requirement of seniority-cum-merit  by  securing
14 marks, as per the Instructions in relation to all aspects entered in  the
ACR. The strong reliance  placed  upon  the  adverse  remarks  made  by  the
respondent No.4, who has made the same without assigning  any  reasons,  has
resulted in the appellant being denied  of  the  promotional  benefit,  even
though the order of the respondent No. 4 was set aside by the  judgment  and
decree in Civil Suit no. 70 of 2001. The  action  of  respondent  No.  4  in
denying the promotional benefit to the appellant is tainted with  malafides.
It can further be observed from the record that it was respondent  no.7  who
had filed the reply on behalf of all the respondents in  the  writ  petition
proceedings before the High Court. It is important to  note  at  this  stage
that respondent No. 7 happens to be an officer junior to the appellant,  who
was promoted to the post in question. The non-filing  of  written  statement
by respondent No. 4 traversing  the  allegations  of  malafide  against  him
proves the malafide intention on part of the respondent  No.  4.  Therefore,
there was  no  justification  for  the  respondent  No.  4  in  denying  the
promotional benefit to the post of  Battalion  Commander  to  the  appellant
and. The learned senior counsel on  behalf  of  the  appellant  has  rightly
placed reliance on the case of Sukhdev Singh  (supra),  wherein  this  Court
has lucidly laid down the law pertaining to communication  of  ACR.  It  was
held that if the ACR of the officer concerned is to be used for the  purpose
of denying promotion, then all such ACRs were required  to  be  communicated
to him, to enable him to make a representation against his  adverse  entries
made in the ACRs.

As per the record submitted by the  respondents,  the  appellant  was  given
grade ‘A+’ for the year 2001-2002, but only 1 mark was  assigned.  According
to the executive Instructions, the grade ‘A+’ is to  be  assigned  4  marks.
Accordingly, if 4 marks are assigned for the ACR of the  appellant  for  the
period 2001-2002, then he  would  have  scored  12  marks  at  the  time  of
consideration for promotion  in  the  year  2003,  whereas  admittedly,  the
appellant was required to achieve only 10 marks in order to be  promoted  to
the post of Battallion Commander. Hence, if the calculation  of  marks  made
by the respondents on the various aspects in the ACR  of  the  appellant  is
believed to be true, then also he has achieved the required  benchmark.  The
action of the respondent No. 4 in deliberately ignoring  the  claim  of  the
appellant is vitiated in law as the  same  is  contrary  to  the  Rules  and
records of ACR for the relevant period and Instructions issued by the  State
Government laying down certain guiding principles.

Therefore, the order of denial of promotion  to  the  appellant,  which  has
been affirmed by the High Court in its judgment  and  order  passed  in  the
Writ Petition and Review Application is liable to be set aside.

 For the reasons stated supra, we pass the following order:-

We set aside the impugned judgment and order passed by  the  High  Court  in
both the Civil Writ Petition and the Review Application and also  the  order
of denying the promotional benefit  by  the  respondents-Department  to  the
post of the Battalion Commander from the year 2001-2002;

Further, we direct  the respondent Nos. 1 to 5  to reconsider the  claim  of
the appellant in the light of our  findings  and  reasons  recorded  on  the
contentious factual and legal aspects so that he could get  higher  post  of
Battalion Commander notionally to get pensionary benefits as  he   has  been
prematurely retired from service on 31.7.2007; and

The said direction shall be complied with within 8 weeks from  the  date  of
the receipt of the copy of this  order  and  extend  all  the  consequential
benefits for the  purpose  of  fixing  his  pensionary  benefits  and  other
monetary benefits for which  he  is  legally  entitled  to  and  submit  the
compliance report to this Court.


 The appeal is allowed in the above said  terms  with  cost  of  Rs.10,000/-
payable to the appellant by respondent Nos. 1 to 4.


                                                ……………………………………………………………………J.
                        [V.GOPALA GOWDA]




                                                ……………………………………………………………………J.
                        [S.A. BOBDE]

New Delhi,
August 21, 2015
-----------------------
[1]     (2013) 11 SCC 746
[2]     2013 (9) SCC 566
[3]     AIR 1979 SC 1622
[4]    (2008) 8 SCC 725

-----------------------
|REPORTABLE           |





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