CWP No.16978 of 2006 -1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.16978 of 2006 Date of Decision: 19.2.2008 Surinder Singh ..Petitioner. Vs. State of Punjab and others ..Respondents. CORAM : HON'BLE MR.JUSTICE MEHTAB S.GILL HON'BLE MR.JUSTICE RAKESH KUMAR JAIN * * * Present: Mr.Surmukh Singh, Advocate for the petitioner. Mr.P.C.Goel, Sr.DAG Punjab for the respondents. * * * Rakesh Kumar Jain, J. This writ petition under Articles 226 and 227 of the Constitution of India, has been filed by the petitioner seeking a writ in the nature of certiorari for quashing the impugned downgrading of Annual Confidential Report (for short the `ACR') for the year 2002-03 from “very good” to “average” being illegal, without recording any reason/justification by the Reviewing Officer and also in the nature of mandamus directing the respondents to re-consider the case of the petitioner for promotion to the post of Deputy Director/ General Manager (Group A) according to the Rules. ` Briefly stated, the facts as mentioned in the petition are that on 26.3.1975, the petitioner had joined Punjab Government Service in the office of Labour Commissioner, Punjab. On 17.1.1980, the petitioner joined CWP No.16978 of 2006 -2 - the Industries Department, Punjab as Junior Industrial Promotion Officer through S.S.S. Board, Punjab. On 1.10.1987, he was promoted as Senior Promotion Officer and further in the year 1994 promoted as Functional Manager whereas the next promotion was due in Group A. The petitioner is working in the office of Industries and Commerce, Punjab and is governed by Punjab Industries Non-Technical (Group-A) Service Rules, 2005. On 6.9.2001, Department of Personnel, Government of Punjab, issued circular letter vide which it was provided that ACRs for the last 5 years were taken into consideration for promotion and criteria for promotion was laid down as under : “The case pertaining to the promotions as Head of Departments would be decided strictly on the basis of merit-cum-seniority. The minimum bench mark for promotion for such posts would be `Very Good'. The marking system adopted earlier in instructions dated the 29th December, 2000 would be followed and a minimum of 15 marks would be required to be considered as Very good. The officer who is graded as `Outstanding' would supersede the officer graded as `Very Good'. For promotion to posts falling in Group `A'; other than Head of Departments, the minimum bench mark will be `Very Good' with at least 12 marks. Amongst those meeting this criteria, there would be no supersession.” According to the petitioner, his promotion was due in the year 2003 in Group `A' post for which Departmental Promotion Committee (for short the `DPC') was held on 13.10.2003 but his name was not considered despite being fully eligible. On 9.10.2004, DPC was again held for CWP No.16978 of 2006 -3 - promotion to the posts of Group A and the name of the petitioner, being eligible Officer, was recommended to the DPC for promotion and his ACRs for the years 1999-2000, 2000-01, 2001-02, 2002-03 and 2003-04 were considered. In that DPC, he was considered eligible candidate for promotion and for the eligibility, 12 marks for the last five ACRs were required. Although, the petitioner had obtained 12 marks to his credit but at that time, no candidate was promoted and the post remained vacant. The ACR for the year 2002-03 was counted as `good' and two marks were awarded to the petitioner for the said ACR in the DPC held on 7.10.2004. On 13.9.2006, the DPC was fixed for the third time for promotion to Group A posts and cases of eligible Functional Managers/Project Managers, including that of the petitioner, were recommended to the DPC. This time the ACRs for the years 2001-02, 2002- 03, 2003-04, 2004-05 and 2005-06 were taken into account and the bench mark was 12 marks of the last five years' ACRs. The grievance of the petitioner is that the entry below the rank of `Very good' was considered adverse and affected the promotion of the petitioner and names of his junior i.e. respondent No.6 and non eligible candidates i.e. respondents No.7 and 8 were recommended for promotion only due to the downgrading of the ACR of the petitioner by respondent No.5 without recording any reason/justification on the file. It has been pleaded that during the session 2002-03, the petitioner was posted as Functional Manager at District Industries Centre, Mohali. His ACR was written by the then General Manager (respondent No.4) with overall grading recorded as `Very good' and was submitted to the Reviewing Officer/Accepting Officer (respondent No.5) but he CWP No.16978 of 2006 -4 - downgraded the ACR from `Very good' to `Average' which is more than 66% or two steps down without recording any reasons/justification for the downgrading and also the same was never communicated to the petitioner. The petitioner has referred to notification dated 26.12.2005 issued by Department of Industries and Commerce (Industries Branch) who vide its notification No.GSR 37/Const./Art. 309/ 2005 framed the Punjab Industries Non-Technical (Group A) Service Rules, 2005 (for short “the Rules”) which is attached as Annexure P-1 and has also referred to notification No.GSR 33/Const./Art. 309/94 dated 4.5.1994 issued by Department of Personnel and Administrative Reforms (Personnel Policies Branch-I) who had framed Punjab Civil Services (General and Common Conditions of Service) Rules, 1994. The relevant portion of Rule 18 of Appendix `C' of the notification dated 4.5.1994 is reproduced as under : “Promotion to Group `A' and Group `B' Services – (1) (a) For promotion to the post as Head of Department would be decided strictly on the basis of merit-cum-seniority as per the instructions issued by the Government from time to time. The minimum bench mark for promotion for such post would be `Very Good'. The officer who is graded as `Outstanding' would supersede the officer graded as `Very Good'. (b) For Promotion to the post falling in Group `A' other than Head of Department, the minimum benchmark will be `Very Good' as per instructions issued by the Government from time to time. There shall be no supersession on the basis of merit.” On notice, two written statements by way of affidavits have been filed, one is jointly by respondents No.1 to 3 and the other CWP No.16978 of 2006 -5 - independently by respondent No.5. In the written statement filed by respondents No.1 to 3, it has been pleaded that ACR reported as “Average” is not adverse, therefore, it is not conveyed and the competent Authority while finalising the ACR, has not downgraded it but had only reviewed. Although it has been admitted that ACRs for the last 5 years were taken into consideration for promotion. The posts of Deputy Director/General Manager fall in Group A and bench mark should be `Very Good' with at least 12 marks. It was further pleaded that petitioner has not fulfilled the criteria of bench mark because as per aforesaid instructions 12 marks were required for promotion but the petitioner could only obtain 11 marks on the basis of ACRs for the last 5 years i.e. from 2001-02 to 2005-06 and the system of evaluation of Annual Confidential Reports was stated to be `Outstanding' - 4 marks, `Very Good' - 3 marks, `Good' - 2 marks and `Average'- 1 mark. Respondent No.5, who was Reviewing or Accepting Authority as has been made a party by name, has filed a separate written statement. He adopted the written statement filed by respondents No.1 to 3 but failed to explain the assessment made by the Reporting Officer while downgrading him from `Very good' to `Average'. No reason was given in his written statement. It is pertinent to mention here that during the course of hearing, the respondent had referred to ACR for the year 2002-03 pertaining to the petitioner which was in vernacular. On the asking of the Court, a translated copy was supplied, which was taken on record as Mark A. Counsel for the petitioner has made twofold submissions. He has argued that although in the ACR for the year 2002-03 (Mark A), CWP No.16978 of 2006 -6 - Reporting Officer has given an overall assessment as `A'(Very Good) yet respondent No.5, who is the Accepting Authority has downgraded it to “He is just an Average Officer”. Counsel has submitted that no reason has been recorded for such downgrading on the personal file nor he was informed of the change in the form of an advice. Counsel has relied upon the decision of Hon'ble Apex Court in the case of U.P.Jal Nigam & Others Vs. Prabhat Chandra Jain & Others reported as 1996 (1) SLR 743 (SC), which is also attached with the writ petition as Annexure P-5, to contend that if the graded entry is of going a step down, like falling from `very good' to `good' that may not ordinarily be an adverse entry since both are a positive grading. All what is required by the Authority recording confidential in the situation is to record reasons for such downgrading on the personal file of the officer concerned, and inform him of the change in the form of an advice. He has further argued that bench mark was 12 marks whereas admittedly as per the written statement in spite of the downgrading of his ACR from `Very Good' to `Average' his bench mark was 11 and according to the marking, `Average' gets 1 mark and `Very Good' gets 3 marks, therefore, had his ACR been not downgraded and had remained `Very Good' as reported by the Reporting Officer, he would have acquired the Bench Mark of 12 and would have been considered for promotion along with others. On the contrary, counsel for the State has reiterated the stand taken by them in the written statement to the effect that “Average” is not an adverse entry, therefore, it need not to be conveyed and ACR is not downgraded but reviewed by the competent Authority. Therefore, it was claimed that the writ petition is meritless and deserves dismissal. We have heard both the counsel for the parties and have CWP No.16978 of 2006 -7 - perused the record. The facts are not much in dispute. It is an admitted fact that the bench mark was 12 marks whereas the petitioner had obtained 11 marks. It is also admitted that the Reporting Officer had given overall assessment of the petitioner as `A'(Very Good) which carries 3 marks and “Average” carries 1 mark. It is also not in dispute that neither any reason has been assigned by the Reviewing Officer in the ACR while converting 'A' (Very Good) to `Average' nor any reason has been given in the written statement either by respondents No.1 to 3 or by respondent No.5 (Reviewing Officer) in their written statements. Now before we proceed further in this case, we deem it appropriate to reproduce the ACR `Mark A', which reads as follows: “Department of Industries & Commerce, Punjab Annual Confidential Report for the year 2002-03 1. Name Shri Surinder Singh Designation Functional Manager 2. Father's name Shri Sardara Singh 3. Time spent on the post - 4. Special remarks Good a) Description of duties Subsidy, Interest Free Loan and recovery under different policies, and DD Powers. b) Technical/Professional Very Good ability c) Knowledge of Policy Good d) Knowledge of Executive Very good Rules and Regulations e) Progress in the achievement Very good of targets different plan and other incentive schemes. f) Supervisory merits Very good g) Punctuality Good. CWP No.16978 of 2006 -8 - h) Does the officer work in Yes Punjabi i) Interest towards planning in the Very good field work j) New Techniques and thoughts and Very good interest in their development k) Relation with other officers/officials and Very good the public l) Did he toured more Yes m) Defects, special remarks, if any No 5. Integrity Good 6.Whether this report has been written by the concerned officer: a) Recorded in time. b) Reviewed in time. Yes c) Accepted in time 7.Overall assessment `A' + (Outstanding), `A' (Very good), `A' (Very good), `B'+ (Good), `B'(Average), `C' (Below Average) Name and Designation of the Reporting Officer Sd/- Sarbjit Singh, General Manager, District Industries Centre, SAS Nagar (Mohali) He is just an average officer B Sd/- T R Sarangal, IAS, Managing Director, SUGARFED PUNJAB CHANDIGARH.” From a perusal of the aforesaid ACR, it is apparent that no reason has been assigned by the Reviewing/Accepting Officer (respondent No.5) at the time of downgrading an assessment report from `A'(Very Good) to `Average'. Similarly on a perusal of the written statement filed by respondent No.5 in particular, the reason in this respect is conspicuous by its absence. CWP No.16978 of 2006 -9 - Now the question is whether recording of reasons is necessary at the time of downgrading the ACR from `A'(Very Good) to `Average'. In the case of U.P.Jal Nigam (supra), the Hon'ble Supreme Court has held as under : “As we view it the extreme illustration given by the High Court may reflect an adverse element compulsorily communicable, but if the graded entry is of going a step down, like falling from `very good' to `good' that may not ordinarily be an adverse entry since both are a positive grading. All what is required by the Authority recording confidentially in the situation is to record reasons for such downgrading on the personal file of the officer concerned, and inform him of the change in the form of an advice. If the variation warranted be not permissible, then the very purpose of writing annual confidential reports would be frustrated. Having achieved an optimum level the employee on his part may slacken in his work, relaxing secure by his one time achievement. This would be an undesirable situation. All the same the sting of adverseness must, in all events, be not reflected in such variations, as otherwise they shall be communicated as such. It may be emphasised that even a positive confidential entry in a given case can periously be adverse and to say that an adverse entry should always be qualitatively damaging may not be true. In the instant case we have seen the service record of the first respondent. No reason for the change is mentioned. The down grading is reflected by comparison. This cannot sustain.” Counsel for the petitioner has also relied upon a decision rendered in State of Uttar Pradesh Vs. Narinder Nath Sinha 2001 (7) CWP No.16978 of 2006 -10 - SCR (SC) 639 and a Division Bench judgment of J&K High Court in Union of India Vs. Col.(Dr.) Jaiban Chandra 2001(7) SLR 325. No judgment contrary to the above, has been cited before us by the counsel for the respondents. From the pleadings and document Mark A, it transpires that the ACR for the year 2002-03 which has been given an overall assessment as `A'(Very Good), has been downgraded as `Average' without assigning any reasons nor any cause has been assigned in the written statement filed by the respondents or at the time of hearing of the case, therefore, the aforesaid decision of the Hon'ble Supreme Court in U.P.Jal Nigam's case (supra) applies to the facts of the case with full force and the action of the respondents of downgrading the ACR of the petitioner, is held to be illegal and arbitrary. In view of the above, the present writ petition is allowed and downgrading of the ACR of the petitioner for the year 2002-03 from `A'(Very Good) to `Average' is quashed. The respondents are further directed to consider the petitioner for promotion to the post of Deputy Director/General Manager (Group A) in accordance with rules. ( Rakesh Kumar Jain) Judge ( Mehtab S.Gill ) 19.2.2008 Judge Meenu