Suresh Chandra Das vs State Of Tripura And Ors.

By means of filing the present writ petition, the petitioner has challenged the entry that was made in the Annual Confidential Report (in short, ACR) as 'good', which appears to be adverse for consideration of his next promotion because 'very good' is the minimum benchmark for consideration of his promotion.

Heard Mr. S. C. Das, learned counsel appearing for the petitioner as well as Mr.G.S. Bhattacharjee, learned counsel appearing on behalf of the State-respondents.

Shorn of unnecessary details, the facts relevant to decide the present writ petition may be stated hereunder:-

"The petitioner while serving as Senior Deputy Magistrate and District Welfare Officer under the State-respondents in the Office of D.M & Collector, West Tripura District, on overall assessment of his performance, the reviewing authority disagreed with the assessment of the Reporting Authority and after passing some remarks made an entry in his ACR as 'good' lowering down his overall grading from 'very good' to 'good'. The reporting officer after assessment of his performance, reported the petitioner as 'very good'. The adverse remarks made in the ACR of the petitioner are as under:-

"Not completely. The officer being reported upon failed to contribute effectively in the assignment given to him. He did'nt have harmonious relationship with the fellow colleagues/companions. He also remained on long duration leave in spite of being advised against it. His overall grading is awarded to 'good' ".

Mr. Das, learned counsel for the petitioner has submitted that ACR entry for the year 2014-2015 lowering the petitioner down from 'very good' to 'good' was not communicated to him. The petitioner applied for a copy of the ACR through Right to Information Act. The information officer had sent the entire copy of the ACR to the petitioner wherefrom, he came to learn that the entry made in his ACR for the year 2014-2015 as 'very good' by the reporting officer was lowered down to 'good' by his reviewing authority which was accepted by the accepting authority.

Being unable to satisfy himself with such downgrading of entry in the ACR from 'very good' to 'good', the petitioner submitted a representation to the appropriate authority of the Government. The copy of the said representation was forwarded to the Reviewing Authority as well as to the Accepting Authority for their views/comments. Thereafter, the Deputy Secretary to the Government of Tripura through memorandum dated 25th June, 2018 made a communication to the petitioner informing him that his representation was forwarded to both the Reviewing Authority and Accepting Authority and they upheld their respective views regarding grading of the petitioner as 'good' (Annexure-11).

Feeling aggrieved and dissatisfied with the aforesaid memorandum dated 25th June, 2018, the petitioner has filed the instant writ petition before this Court for setting aside/quashing the said grading of the petitioner as 'good' on the ground that rules of natural justice have been violated.

In my opinion, non-communication of the entry made by the State-respondents in the ACR of the petitioner is contrary to the settled principle of law. Furthermore, the forwarding of the representation to the same officers who graded him as 'good' is also contrary to the settled principle of law. By now, it is settled that whenever a representation is submitted by an officer being aggrieved of his entry in the ACR, it should not be considered by the same officer/s, but, by an authority higher than the one who gave the entry, otherwise, the likelihood is that the representation would be summarily rejected without adequate consideration as it would be an appeal from caesar to caesar, which is apparent, in the instant case, on the face of the record.

[emphasis supplied]

It further emanates from the record that the petitioner was not communicated with the entry in his ACR and he had to apply through RTI for obtaining the copy of the ACR. This is highly deprecated. It is made clear, that every entry in the ACR of a public servant must be communicated to him within a reasonable period, whether it is 'poor', 'fair', 'average', 'good' or 'very good' entry. Failure of non-communication of entries in the Annual Confidential Report of a public servant irrespective of any branch of services (other than military), certainly has civil consequences because it may affect his chance for promotion or to get other benefits, otherwise there is violation of doctrine of fairness which is the soul of natural justice. Even an 'outstanding' entry should be communicated since that would boost the morale of the employee and make him work harder. Furthermore, it would enable him to make a representation against the entry, if according to him such entry is unjustified and pray for its upgradation. That is what the Apex Court observed in Para-17 & 18 in Dev Dutt Vs. Union of India reported in (2008) 8 SCC 725 [SCC. p. 733] which is reproduced here-under:-

"19. In our opinion, every entry in the A.C.R. of a public servant must be communicated to him within a reasonable period, whether it is a poor, fair, average, good or very good entry. This is because non-communication of such an entry may adversely affect the employee in two ways : (1) Had the entry been communicated to him he would know about the assessment of his work and conduct by his superiors, which would enable him to improve his work in future (2) He would have an opportunity of making a representation against the entry if he feels it is unjustified, and pray for its upgradation. Hence non-communication of an entry is arbitrary, and it has been held by the Constitution Bench decision of this Court in Maneka Gandhi vs. Union of India that arbitrariness violates Article 14 of the Constitution.

Thus, it is not only when there is a bench mark but in all cases that an entry (whether it is poor, fair, average, good or very good) must be communicated to a public servant, otherwise there is violation of the principle of fairness, which is the soul of natural justice. Even an outstanding entry should be communicated since that would boost the morale of the employee and make him work harder.

[emphasis in original]

Here, the question of application of the doctrine of fairness and fairplay would come into play because the State being a model employer has to show transparency in all of his actions in public administration to notify its fairness towards its own employees.

It is the specific case of the petitioner that entry made in his ACR as 'good' is an adverse entry for consideration of his next promotion. Further, in my opinion such downgrading can have serious adverse effect on the petitioner's chance of promotion when comparative merits of many candidates of the same rank/cadre would be considered. As I said earlier, the representation submitted by the petitioner was placed before the same officers who downgraded his ACR to dispose off and to decide the merits of the representation of the petitioner, which action, on the part of the State-Government, violates the doctrine of natural justice following the well-neigh principle of 'fairness' that no one should be a Judge in his own case (nemo debet esse judex propria causa). The State Government is bound to follow the doctrine of 'fairness' and good faith in all its activities for the reason that "the doctrine (natural justice) is now termed as a synonyms of fairness in the concept of justice and stands as the most accepted methodology of a governmental action." [Kumaon Mandal Vikas Nigam Ltd. Vs. Girija Shankar Pant, (2001) 1 SCC 181, SCC. P. 188]

[emphasis supplied]

For the reasons stated above, I find merit in the present writ petition, and according to me, the State-respondents have committed serious error in law by referring the representation of the petitioner to the same officers that is the respondent Nos.4 & 6 (Sri Puneet Agarwal and Sri Abhishek Singh, IAS respectively) who downgraded the ACR of the petitioner from 'very good' to 'good'. By their actions, the State-respondents are found to be deficient to strictly adhere to the doctrine of 'fairness' and good faith which the petitioner legitimately expected from the Government. Viewed thus, the impugned entry as 'good' downgrading the entry made by the Reporting Authority as 'very good' in the ACR of the petitioner stands set aside and quashed.

In view of this order, the State respondents are directed to make a fresh exercise to assess the performance of the petitioner in the discharge of his duties keeping in mind that the Reporting Authority who had been in direct touch with the day to day activities of the petitioner, assessed his performance as 'very good'. In the process, the State-respondents shall follow the settled principles of law as encapsulated here-in-above.

In the light of the above observations and directions, the writ petition stands allowed.