CW 10016/09 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No.10016/2009 Jai Narain Versus State & Ors Date of Order : 07/12/2010 Hon'ble Mr. Justice Ajay Rastogi Mr. RN Mathur, for petitioner. Mr. NA Naqvi, Addl. Adv. Gen for respondent State Mr. Shashank Sharma for respondent-3 Matter has come up on 2nd stay application dt.19/11/2010. At joint request, it has been heard for final disposal at admission stage. Instant petition has been filed by petitioner with the grievance that his annual performance appraisal reports ("APAR") of the years 2005-06 & 2006-07 were downgraded despite his performance in preceding & succeeding years has been outstanding/very good; and in absence of opportunity of hearing being afforded, recording of downgrading remarks in the APARs in question is in violation of principles of natural justice; and deserves to be ignored while his candidature being considered for further promotion to the post of Indian Police Service ("IPS") under IPS (Appointment by Promotion) Regulations, 1955 ("IPS Regulations"). Petitioner is a member of Rajasthan Police Service ("RPS"). He is aggrieved by CW 10016/09 //2// downgrading of remarks recorded in his APARs of years 2005-06 & 2006-07. It has come on record that besides two APARs in question, in previous and succeeding years' APARs, performance of petitioner was found to be outstanding/very good and without any reason or rhyme, APARs of years 2005-06 & 2006-07 have been downgraded below the benchmark, which has caused prejudice to him while being considered for promotion to the post of IPS being based on merit under IPS Regulations. Details of remarks recorded in his APARS since August, 1997 to March, 2008 have been referred to in para 2 of the petition. Counsel for petitioner submits that before downgrading remarks being recorded in APARs of years 2005-06 & 2006-07, no opportunity of hearing was afforded to petitioner which is in violation of principles of natural justice, as also of Art. 14 of the Constitution. In support, Counsel for petitioner placed reliance upon decisions of Apex Court in Dev Dutt Vs. Union of India (2008(8) SCC 725) & Abhijit Ghosh Dastidar vs. Union of India (2009(16) SCC 146). According to the reply filed by respondent-1, before downgraded remarks were were recorded in two impugned APARs, indisputably, no opportunity of hearing was CW 10016/09 //3// afforded to the petitioner. However, it has been averred in the reply that remarks were recorded by concerned reporting/reviewing authority based on his performance during relevant period; and the Committee while considering for promotion had looked into service record of each officer extensively and thereafter has taken its decision in regard to over all suitability of the Officers to be adjudged on objective assessment and since awarding of downgrading remarks does not amount to adverse remarks; as such were not required to be communicated to the petitioner. Counsel for petitioner has informed that respondents are intended to initiate process for promotion under IPS Regulations and his interest during intervening period till his representation being disposed of against communication of downgrading remarks in question, atleast be safeguarded by this Court. This Court has considered contentions advanced at the bar and with their assistance, examined material on record. Consequence of downgrading remarks and its impact on employee's career have been examined by Apex Court in Dev Dutt Vs. Union of India (supra) ad infra: “26. In our opinion, our natural sense of what is right and wrong CW 10016/09 //4// tells us that it was wrong on the part of the respondent in not communicating the 'good' entry to the appellant since he was thereby deprived of the right to make a representation against it, which if allowed would have entitled him to be considered for promotion to the post of Superintending Engineer. One may not have the right to promotion, but one has the right to be considered for promotion, and this right of the appellant was violated in the present case.” “36. In the present case, we are developing the principles of natural justice by holding that fairness and transparency in public administration requires that all entries (whether poor, fair, average, good or very good) in the Annual Confidential Report of a public servant, whether in civil, judicial, police or any other State service (except the military), must be communicated to him within a reasonable period so that he can make a representation for its upgradation. This in our opinion is the correct legal position even though there may be no Rule/G.O. requiring communication of the entry, or even if there is a Rule/ G.O. prohibiting it, because the principle of non-arbitrariness in State action as envisaged by Art.14 of the Constitution in our opinion requires such communication. Art. 14 will override all rules or CW 10016/09 //5// government orders.” “37. We further hold that when the entry is communicated to him the public servant should have a right to make a representation against the entry to the concerned authority, and the concerned authority must decide the representation in a fair manner and within a reasonable period. We also hold that the representation must be decided by an authority higher than the one who gave the entry, otherwise the likelihood is that the representation will be summarily rejected without adequate consideration as it would be an appeal from Caesar to Caesar. All this would be conducive to fairness and transparency in public administration, and would result in fairness to public servants. The State must be a model employer, and must act fairly towards its employees. Only then would good governance be possible.” “41. In our opinion, non- communication of entries in the Annual Confidential Report of a public servant, whether he is in civil, judicial, police or any other service (other than the military), certainly has civil consequences because it may affect his chances for promotion or get other benefits (as already discussed above). Hence, such non- communication would be arbitrary, and as such violative of Article 14 CW 10016/09 //6// of the Constitution.” “44. We, therefore, direct that the 'good' entry be communicated to the appellant within a period of two months from the date of receipt of the copy of this judgment. On being communicated, the appellant may make the representation, if he so chooses, against the said entry within two months thereafter and the said representation will be decided within two months there- after. If his entry is upgraded the appellant shall be considered for promotion retrospectively by the Departmental Promotion Committee (DPC) within three months there- after and if the appellant gets selected for promotion retros- pectively, he should be given higher pension with arrears of pay and interest @ 8% per annum till the date of payment.”. It has also been held by Apex Court that remarks recorded below the benchmark certainly makes an incumbent ineligible for promotion and deprives him of his right of fair consideration for promotion; and finally held that non-communication of entries in APARs recorded below the benchmark certainly has civil consequences as it may affect chance of promotion and as such non-communication was held to be arbitrary and in violation of Art.14 of the Constitution. The view expressed (supra) was further CW 10016/09 //7// taken note of by Apex Court in Abhijit Ghogh Vs. Union of India (supra) while holding ad infra: "8. Coming to the second aspect, that though the benchmark "very good" is required for being considered for promotion admittedly the entry of "good" was not communicated to the appellant. The entry of 'good' should have been communicated to him as he was having "very good" in the previous year. In those circumstances, in our opinion, non- communication of entries in the ACR of a public servant whether he is in civil, judicial, police or any other service (other than the armed forces), it has civil consequences because it may affect his chances for promotion or get other benefits. Hence, such non- communication would be arbitrary and as such violative of Article 14 of the Constitution. The same view has been reiterated in the above referred decision ( Dev Dutt Vs Union of India :: 2008(8) SCC 725) relied on by the appellant. Therefore, the entries "good" if at all granted to the appellant, the same should not have been taken into consideration for being considered for promotion to the higher grade. The respondent has no case that the appellant had ever been informed of the nature of the grading given to him.” In instant case, downgrading remarks recorded in two of his APARs (supra) indisputably were not communicated to the petitioner and non-communication of such downgrading remarks is in violation of principles of natural justice and is held to be arbitrary being in violation of Art.14 of CW 10016/09 //8// the Constitution. Consequently, writ petition succeeds and is hereby allowed. Respondent-1 is directed to communicate downgrading remarks below the benchmark recorded in APARs of years 2005-06 & 2006-07 to the petitioner within one month and after these downgrading remarks being communicated, the petitioner within one month thereafter may make representation if so desired, the competent authority may examine the same and pass an order within two months thereafter and communicate its decision to the petitioner, who if feels aggrieved whereof, will be free to avail of the remedy under the law. However, pending consideration of his representation pursuant to directions (supra), if the respondents initiate process of promotion under IPS Regulations, the downgrading remarks in question be ignored and shall not be taken note of by the promotion committee while consideration of petitioner's case subject to final result whereof as it is only interim arrangement till disposal of representation (supra). No costs. (Ajay Rastogi), J. K.Khatri/p.8/ 10016CW09RsrDec7DowngrdngAPAR.doc