1 S.B.CIVIL WRIT PETITION NO. 4016/2009 State of Rajasthan & Ors. Vs. Kheev Raj & Ors. Date of Order :: 24.04.2009 HON'BLE MR. JUSTICE GOVIND MATHUR Mr L.K. Purohit, for the petitioner/s. Mr H.R. Soni, for the respondent No.1-Caveator. ... By this petition for writ validity, correctness and propriety of the order dated 11.11.2008 passed by the Rajasthan Civil Services Appellate Tribunal Jaipur in Appeal No.68/2003 is questioned. The factual matrix necessary to be noticed is that the respondent No.1, a Junior Engineer with the Department of Irrigation, is having an avenue for promotion to the post of Assistant Engineer as per the provisions of Rajasthan Service of Engineers and Research Officers (Irrigation Branch) Rules, 1954. The criteria for promotion applicable in the present case is as per sub-rule 4 of Rule 24-A of the Rules of 1954, according to which selection for promotion in regular line of promotion from the post/posts not included in service to the lowest post or category of posts in service shall be made strictly on basis of merit and on basis of seniority cum merit in proportion of 50:50. The respondent being Junior Engineer is a member of Rajasthan Engineering Subordinate Service (Irrigation Branch) created under the Rajasthan Engineering Subordinate Service (Irrigation Branch) Rules, 1954 and is eligible to be considered for promotion to the lowest 2 post i.e. of Assistant Engineer in the Rajasthan Service of Engineers and Research Officers created under the Rules of 1954. On non- consideration for promotion to the post of Assistant Engineer against the vacancies relating to merit quota for the vacancy year of 1996-97, he preferred an appeal before the Rajasthan Civil Services Appellate Tribunal. Before the Tribunal the stand of the present petitioner was that remarks in the annual confidential reports of the respondent pertaining to the year 1993-94 was only “Good”, and as such, he was not coming within the norms laid down to be considered for promotion under the merit quota. Pertinent to note here that for such consideration a Junior Engineer is required to have five outstanding/very good remarks in his annual confidential reports. Learned Tribunal after examining all annual confidential records dossier relating to the respondent/government-servant found that in the year 1993-94 the reporting officer treated him a “Very Good” officer but the reviewing authority down graded the same as “Good”. No information was given to the respondent/government-servant before making such down-gradation. Accordingly, the Tribunal held such down-gradation bad and directed the respondents to consider candidature of the respondent/government-servant for promotion as Assistant Engineer against the vacancies of the year 1996-97 by treating remarks in his annual confidential records for the year aforesaid as “Very Good”. 3 While challenging the same the contention of the petitioner is that the Tribunal was not competent to alter the remarks made by the reviewing authority. It is also urged that the petitioner was not having five outstanding/very good entries in the seven years preceding to the year 1996-97, and as such, the departmental promotion committee rightly not considered his candidature for the purpose of promotion as Assistant Engineer against the vacancies relating to merit quota. Heard counsel for the petitioner as well as Sh. H.R. Soni, appearing as Caveator on behalf of the respondent Sh. Kheev Raj Parihar, the appellant-government servant. There is no dispute between the parties that for the year 1993-94 the reporting officer placed the petitioner's performance in a “Very Good” category and the same was changed by the reviewing authority as “Good”. It is also not in dispute that such alteration was not communicated to the petitioner. Hon'ble Supreme Court in Dev Dutt Vs. Union of India & Ors. reported in 2008 (8) SCC 725 while dealing with the issue as to whether down-gradation of remarks in ACRs which are not normally treated adverse are required to be communicated to the employee concerned or not held as follows: “9. We do not agree. In our opinion every entry must be communicated to the employee concerned, so that he may have an opportunity of making a representation against it if he is aggrieved. 4 10. In the present case the bench mark (i.e. the essential requirement) laid down by the authorities for promotion to the post of Superintending Engineer was that the candidate should have 'very good' entry for the last five years. Thus in this situation the 'good' entry in fact is an adverse entry because it eliminates the candidate from being considered for promotion. Thus, nomenclature is not relevant, it is the effect which the entry is having which determines whether it is an adverse entry or not. It is thus the rigours of the entry which is important, not the phraseology. The grant of a `good' entry is of no satisfaction to the incumbent if it in fact makes him ineligible for promotion or has an adverse effect on his chances. 11. Hence, in our opinion, the 'good' entry should have been communicated to the appellant so as to enable him to make a representation praying that the said entry for the year 1993-94 should be upgraded from 'good' to 'very good'. Of course, after considering such a representation it was open to the authority concerned to reject the representation and confirm the 'good' entry (though of course in a fair manner), but at least an opportunity of making such a representation should have been given to the appellant, and that would only have been possible had the appellant been communicated the 'good' entry, which was not done in this case. Hence, we are of the opinion that the non-communication of the 'good' entry was arbitrary and hence illegal, and the decisions relied upon by the learned counsel for the respondent are distinguishable. 12. Learned counsel for the respondent submitted that under the Office Memorandum 21011/4/87 [Estt.'A'] issued by the Ministry of Personnel/Public Grievance and Pensions dated 10/11.09.1987, only an adverse entry is to be communicated to the concerned employee. It is well settled that no rule or government instruction can violate Article 14 or any other provision of the Constitution, as the Constitution is the highest law of the land. The aforesaid Office Memorandum, if it is interpreted to mean that only adverse entries are to be communicated to the concerned employee and not other entries, would in our opinion become arbitrary and hence illegal being violative of Article 14. All similar 5 Rules/Government Orders/Office Memoranda, in respect of all services under the State, whether civil, judicial, police, or other service (except the military), will hence also be illegal and are therefore liable to be ignored. 13. It has been held in Maneka Gandhi vs. Union of India & Anr. AIR 1978 SC 597 that arbitrariness violates Article 14 of the Constitution. In our opinion, the non- communication of an entry in the A.C.R. of a public servant is arbitrary because it deprives the concerned employee from making a representation against it and praying for its up-gradation. In our opinion, every entry in the Annual Confidential Report of every employee under the State, whether he is in civil, judicial, police or other service (except the military) must be communicated to him, so as to enable him to make a representation against it, because non-communication deprives the employee of the opportunity of making a representation against it which may affect his chances of being promoted (or get some other benefits). Moreover, the object of writing the confidential report and making entries in them is to give an opportunity to a public servant to improve his performance, vide State of U.P. vs. Yamuna Shankar Misra 1997 (4) SCC 7. Hence such non-communication is, in our opinion, arbitrary and hence violative of Article 14 of the Constitution. 14. In our opinion, every entry (and not merely a poor or adverse entry) relating to an employee under the State or an instrumentality of the State,whether in civil, judicial, police or other service (except the military) must be communicated to him, within a reasonable period, and it makes no difference whether there is a bench mark or not. Even if there is no bench mark, non-communication of an entry may adversely affect the employee's chances of promotion (or getting some other benefit), because when comparative merit is being considered for promotion (or some other benefit) a person having a `good' or `average' or `fair' entry certainly has less chances of being selected than a person having a `very good' or `outstanding' entry. 15. In most services there is a gradation of entries, which is usually as follows: 6 (i) Outstanding (ii) Very Good (iii) Good (iv) Average (v) Fair (vi) Poor A person getting any of the entries at items (ii) to (vi) should be communicated the entry so that he has an opportunity of making a representation praying for its upgradation, and such a representation must be decided fairly and within a reasonable period by the concerned authority. 16. If we hold that only `poor' entry is to be communicated, the consequences may be that persons getting `fair', `average', `good' or `very good' entries will not be able to represent for its upgradation, and this may subsequently adversely affect their chances of promotion (or get some other benefit).” In view of the law laid down by Hon'ble Supreme Court in Dev Dutt (supra) it is quite clear that if any down-gradation in annual confidential report is made by the reviewing authority, irrespective of the fact that is adverse or not but affect promotional or anyother right of an employee, then such down-gradation is required to be communicated to the employee. In the instant matter too the respondent/government- servant has been excluded from the zone of consideration for promotion to the post of Assistant Engineer against the vacancies relating to the merit quota due to down-gradation from the category i.e. “Very Good” to “Good”. The down-gradation so made has affected chances of promotion adversely, and therefore, such down-gradation should have been communicated to the employee concerned with an opportunity to 7 explain his service performance. As such, learned Tribunal rightly held that alteration made by the reviewing authority in the ACRs of the petitioner for the year 1993-94 was not appropriate. In view of whatever stated above I do not find any error with the judgment impugned that may warrant interference of this Court while exercising powers under Article 226 and 227 of the Constitution of India. Accordingly, the petition for writ is dismissed. (GOVIND MATHUR), J. Jgoyal '