Supreme Court: Annual confidential report of employee communicated one day before meeting of Departmental promotion committee can not be considered for his promotion

Similarly so far as the ACR gradings for the year 2019-2020 is concerned, admittedly the same was communicated to the petitioner on 08.04.2021, just one day before the DPC met on 09.04.2021. The petitioner was having 15 days’ time to make the representation against the ACR grading for the year 2019-2020. Before the 15 days were over, the DPC met on 09.04.2021 and considered the case of the petitioner for promotion. The submission on behalf of the High Court that the other candidates who were also communicated the ACRs for the year 20192020 on 08.04.2021 submitted their representations on 09.04.2021 and therefore the petitioner also could have submitted the representation on 09.04.2021 like other candidates is concerned, it is neither here nor there. The fact remains that the petitioner was having 15 days’ time from 08.04.2021 to make a representation. Therefore, either the DPC could have been postponed or the ACR for the year 2019-2020 ought not to have been considered and the same ought to have been treated as uncommunicated ACR.

6.7 The sum and substance of the aforesaid discussion would be that as the ACR Grading of “Good” for the year 2016-17 was not communicated till the DPC met, the same is to be ignored and/ or be not relied upon for consideration of promotion. Similarly, the grading for the year 2019-2020 also is to be excluded and/or be not relied upon for consideration for promotion as the same was communicated on 08.04.2021 and the petitioner was granted 15 days’ time to make representation and before the representation could be made the DPC met on 09.04.2021 and considered the case of the petitioner for promotion.

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 1209 OF 2021;

R.K. Jibanlata Devi Vs High Court of Manipur 

Coram: M.R. SHAH; J., C.T. RAVIKUMAR; J.

Author:M.R. SHAH, J.

Dated: February 24, 2023

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When the high court should not consider a complaint against Judicial Officer in his transfer, promotion and compulsory retirement?

  In context of the three complaints filed against the appellant, it is important to note that the same were never communicated to the petitioner during his service tenure and that the complaints had been subsequently closed. Moreover, two out of the three complaints were closed prior to the meeting of the Higher Judicial Committee and therefore, could not have been the basis of the decision of the Committee. Additionally, in so far as the complaint dated 20.10.2015 (bearing No. R/V/JP/PIN/118/2015) is concerned, it is neither supported by any affidavit nor has any address been provided in it and importantly, was also closed by the respondent prior to the appellant’s discharge order. In this context, it is pertinent to refer to the Standing Order No. 03./S.O./2015 dated 10.06.2015 which directed that:

“The complaint making allegations against members of the subordinate judiciary in the states should not be entertained and no action should be taken thereon, unless it is accompanied by a duly sworn affidavit and verifiable material to substantiate the allegations made therein

……..

……..

……..

The entry of the complaint in the pre-institution register for inward number will not be treated as pendency of Vigilance matter against the Judicial Officer and will not be taken into consideration against the Judicial Officer in any service matter including transfer, promotion and for compulsory retirement.”

(emphasis supplied)

In the present case, the record clearly showcases that no verifiable complaint was filed against the appellant that could form the basis of the disciplinary proceeding against him. {Para 55}

IN THE SUPREME COURT OF INDIA 

CIVIL APPELLATE JURISDICTION

 CIVIL APPEAL NO.2029 OF 2022

 ABHAY JAIN Vs THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AND ANR.

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Procedure to be followed by high court for promotion of district Judge

 No doubt that the judgments are evaluated and interviews are

conducted by the Hon'ble Judges of this Court. As such, the

assessment of the judgments of the candidate as well as assessment of the performance of the candidate in vivavoce would be presumed to be on objective basis. However, by now, it is a settled principle of law that merely because there is no possibility of discretion being not

exercised properly, that by itself cannot be a ground for granting wider

discretion howsoever high the authority may be. We may also

gainfully refer to the Judgment of the Apex Court in Ajay Hasia vs.

Khalid MujibAIR 1981 SC 487. In the said case, selection process included 33.33

percentage marks for oral interview. Their Lordships held that

allocation of a high percentage of marks for the oral interview as

compared to the marks allocated for the written test, cannot be

accepted by the Court as free from the vice of arbitrariness. After

discussing the entire legal position, Their Lordships observed that

allocation of more than 15% of the marks out of the total marks for

the oral interview would be arbitrary and unreasonable and was liable

to be struck down as constitutionally invalid. In the Rules that fall for

consideration before us more than twice permissible limit of 15% i.e.

33.33% of the marks are allocated on the basis of oral interview. Not

only that even 33.33 % of the marks which are to be allocated on the

basis of evaluation of the judgment are also on the basis of subjective

evaluation which may differ from a judge to judge.{Para 12}

13] We are therefore of the prima facie view that award of only

33% of marks on the basis of objective assessment and 66.66 % of

marks on the basis of subjective assessment i.e. evaluation of

judgments and oral viva appears to be an issue which needs to be

looked into.

14] We may clarify that we do not propose to encroach upon the rule

making powers of the High Court on the Administrative Side.

However, as already discussed hereinabove, we may also observe that it is high time that the Rules which govern the promotions of high office of District Judge need to be reframed in a proper format. We may also prima facie observe that the selection process for the

promotion should not have more than 50% of the marks to be

determined on the basis of subjective assessment i.e. evaluation of

judgment and granting of marks for vivavoce. We therefore feel that

rule making authority i.e. High Court on the Administrative Side will

address the issue and find out a system of selection which has more

weightage on the objective assessment than the subjective assessment

of the candidate.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION (L) NO. 1440 OF 2017

Surekha Abhay Sinha  V/s State of Maharashtra 

Mr. Ravi Gadagkar a/w Mr. Aniket Ransubhe i/b Mr. Ajay Basutkar for the Petitioner.

Mr. Himanshu Takke, Asstt. Govt. Pleader for Respondent Nos. 1 and

Mr. A.A. Kumbhakoni, Advocate General a/w Mr. Rahul Nerlekar for Respondent No.3.

CORAM: B. R. GAVAI &  M.S. KARNIK, JJ.

DATE: 4th September, 2017

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Whether employer should advise employees about service rules?

The learned Tribunal as well as the High Court granted the relief
to respondent No. 4 on the ground that the department ought to
have informed and/or advised the employee with respect to the
seniority to be fixed on the basis of rotaquota
rule and as the

department failed to do so, respondent No. 4 cannot be denied
his legitimate right to be placed at an appropriate place in the
seniority list, as otherwise also he was selected for a promotion in
the LDCE quota also. On the aforesaid terms, the learned
Tribunal as well as the High Court are not justified in directing to
put respondent No. 4 in the seniority list above the appellant
who, in fact, was appointed in the LDCE quota and the
respondent No. 4 never accepted his promotion in the LDCE
quota. It was for the employee to know the rule. The department
was not expected to advise and/or tell the employee about how
the seniority will be fixed and/or about the rotaquota
rule.
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7779 OF 2012

P. Subramaniyam Vs Union of India


M. R. Shah, J.
Dated:March 15, 2019.

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Whether uncommunicated adverse Annual confidential report of employee can be relied on for purpose of his promotion?

 The sole issue involved in this appeal is whether the uncommunicated Annual Confidential Reports (ACRs), which are adverse to the Appellant, should have been relied upon for the purpose of consideration of the Appellant for promotion.

2. In view of the decision of this Court in Sukhdev Singh v. Union of India and Ors. reported in MANU/SC/0481/2013 : (2013) 9 SCC 566, there cannot be any dispute on this aspect. This Court has settled the law that uncommunicated and adverse ACRs cannot be relied upon in the process.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 32 of 2013

Decided On: 28.08.2018

 Rukhsana Shaheen Khan Vs.  Union of India (UOI) and Ors.

Hon'ble Judges/Coram:

Kurian Joseph and Sanjay Kishan Kaul, JJ.

Citation:(2018) 18 SCC 640

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Whether annual confidential report can be ignored for purpose of promotion on ground that it was written after some delay?

These appeals raise a narrow question for consideration, namely, whether the Annual Confidential Report (ACR) of an officer forms a part of his ‘service record’ and whether it could be ignored for the purposes of his promotion merely on the ground that it was written after some delay. In our opinion, the ACR of an officer forms a part of his service record and he cannot be prejudiced merely because his superior officers delayed writing it. 

That apart, the fact that the ACR of Sivanandi was written and reviewed by his superior authorities after a considerable delay obviously cannot put him to any disadvantage. The writing and review of his ACR was beyond his control and we do not see any rational basis on which Sivanandi could be disadvantaged merely because his superior officers were lax in the discharge of their responsibilities.

20. Under these circumstances, we are of the view that the High Court while upholding the view expressed by the Tribunal was in error in concluding that the Review Select Committee could not consider the ACR of Sivanandi for the period 01.04.1993 to 15.07.1993 and to this extent the decision of the High Court is set aside.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

(Before Madan B. Lokur and Prafulla C. Pant, JJ.)

Civil Appeal Nos. 4822-4826 of 2007

P. Sivanandi 

v.

Rajeev Kumar & Ors. 

Decided on February 2, 2017
Citation:2017 SCC OnLine SC 85,AIR 2017 SC 714

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Whether Fast track Court Judges appointed on Ad hoc basis have right for regular promotion on the basis of such appointment?

From the aforesaid two authorities, it is quite clear
that the appointments in respect of Fast Track Courts are
ad hoc in nature and no right is to accrue to such recruits
promoted/posted on ad hoc basis from the lower judiciary

for the regular promotion on the basis of such appointment.
It has been categorically stated that FTC Judges were
appointed under a separate set of rules than the rules
governing the regular appointment in the State Higher
Judicial Services.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6105 OF 2013
V. Venkata Prasad & Ors. ... Appellants
 VERSUS
High Court of A.P. & Ors. ... Respondents
Dated:June 29, 2016
Dipak Misra, J.

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Whether govt officer can be denied promotion on the basis of uncommunicated annual confidential report?

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.
REPORTABLE
 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  Vs.STATE OF PUNJAB & ORS.

Citation; AIR 2016  SC1260

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When annual confidential report of govt servant should not be downgraded?

 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.
 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.

IN THE SUPREME COURT OF INDIA
 CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6532 OF 2015

DALJIT SINGH GREWAL …
Vs.
STATE OF PUNJAB & ORS. 

V. GOPALA GOWDA, J.
Citation;(2015)9 SCC680

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When promotion to govt servant should not be denied on basis of irrelevant annual confidential reports?

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.
 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

V. GOPALA GOWDA, J.
Citation;(2015)9 SCC680

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Whether previous remark of dishonesty is washed off by subsequent promotion?

The Honble Apex Court in the case of Badrinath Vs. Government of Tamil Nadu and others, (2000) 8 SCC 395 had an occasion to deal with the washing off theory. It was held that if adverse remarks relate to a period, prior to an earlier promotion, they indeed can be treated as having lost their sting and being rendered weak subject to the rider that if they relate to dishonesty or lack of integrity, they can be considered to have not lost their strength fully so as to be ignored altogether (emphasise mine).

In the context of enunciation by the Honble Apex Court, the fact of the instant case indicate that the petitioner's misconduct for tampering with a certificate issued by the respondent Bank's Jaipur Office in a departmental enquiry culminated in punishment and placing him in the lowest rank of the pay scale. The misconduct pertained to the dishonesty of the petitioner and would not cease to be relevant for assessment of his suitability for promotion from Class-IV to the post of Assistant Care Taker in the Class-III cadre of the Bank even subsequent to his promotion within Class-IV service. 

Rajasthan High Court at Jaipur Bench

Patel Ram Meena vs . Reserve Bank Of India Through ... on 27 July, 2015

S.B. Civil Writ Petition No. 1784/2015

HONBLE MR. JUSTICE ALOK SHARMA

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Basic principles for grant of retrospective promotion to govt officers

The cornucopia of case law above noted brings out the
position :-
(i) Service Jurisprudence does not recognize retrospective promotion
i.e. a promotion from a back date.
(ii) If there exists a rule authorizing the Executive to accord
promotion from a retrospective date, a decision to grant promotion
from a retrospective date would be valid because of a power existing
to do so.
(iii) Since mala fides taints any exercise of power or an act done,
requiring the person wronged to be placed in the position the person
would find himself but for the mala fide and tainted exercise of power
or the act, promotion from a retrospective date can be granted if delay 
in promotion is found attributable to a mala fide act i.e. deliberately
delaying holding DPC, depriving eligible candidates the right to be
promoted causing prejudice.
(iv) If due to administrative reasons DPC cannot be held in a year and
there is no taint of malice, no retrospective promotion can be made.
IN THE HIGH COURT OF DELHI AT NEW DELHI

 Judgment Pronounced on: April 12, 2013
W.P.(C) 8102/2012
UOI & ANR. .

versus
KL TANEJA AND ANR



CORAM:

HON'BLE MS. JUSTICE PRATIBHA RANI
PRADEEP NANDRAJOG, J.

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