WA 42/2008 BEFORE HON’BLE THE CHIEF JUSTICE MR. J CHELAMESWAR HON’BLE MR. JUSTICE AMITAVA ROY JUDGEMENT AND ORDER (CAV) AMITAVA ROY,J : All these appeals register a challenge to the judgment and order dated 14.12.2007 allowing the writ petitions aforementioned, thus sustaining th e assailment to the moderation of the gradings of the writ petitioners in their ACRs with the consequential direction to grant promotion to them to the post of Superintending Engineer in the Pubic Works Department of the State on a reassess ment of their cases in the light of the directions contained therein. Whereas, t he State of Assam in the Public Works Department (hereinafter referred to as the ’Department’) has impugned this decision in Writ Appeal Nos. 41/2008, 42/2008, 43/2008 and 63/2008, some of the candidates already recommended by the Selection Committee for such promotion (also impleaded as respondents in the writ petitio ns), have taken up the cudgel in Writ Appeal Nos. 51/2008, 52/2008,53/2008 and 5 5/2008 against the same decision. 2. We have heard Mr AM Mazumdar, Senior Advocate assisted by Mr. S. Saikia, Advocate for the State of Assam, Mr P.K.Goswami, and Mr. DK Mishra, Se nior Advocates assisted by Mr. J Roy, Advocate for the writ petitioners (corresp onding respondents in the appeals) as well as Mr. AK Goswami, Senior Advocate, M r. UK Nair and Mr. U Raj Saikia, Advocates for the other appellants. 3. The contextual facts constituting the edifice of the lis are sub stantially common in all material particulars, and the questions of law raised b eing the same, these appeals were analogously heard and are being disposed of by this judgment and order. 4. The pleaded case of the writ petitioners in essence, is that, th ey are all presently holding the rank of Executive Engineer in the Department an d have an over all service tenure ranging between 22 to 25 years. They had all b eing promoted to this rank in the year 2002 and are eligible to be considered f or elevation to the next higher rank of Superintending Engineer in terms of the Assam Engineering( PWD) Service Rules,1978 ( hereinafter referred to as the ’Ru les’) framed under Article 309 of the Constitution of India. They have averred that, by the Notification No.CON.5/2003/50 dated 28.04.2003 issued by the Comm issioner and Special Secretary to the Govt.of Assam, PWD, certain guidelines hav e been prescribed for administering the promotions upto the rank of Superinten ding Engineer and above. Though the recital in the notification claims that it h ad been issued pursuant to the judgment and order dated 07.04.2003 passed in WP( C) No 6274/2002 and WP( C) No. 6606/2002, the writ petitioner in WP( C)No.246/20 07 contends that the same is wholly incompatible with the letter and spirit o f the said verdict. Be that as it may, they are one in insisting that their case s were not considered for promotion to the rank of Superintending Engineer in te rms of the Rules. According to them, the relevant Annual Confidential Reports (h ereinafter referred to for short as ’ACR’) amongst other records and documents p ertaining to their service necessary to be assessed by the Selection Committee under the Rules for the selection involved were for the years 2000-2001 to 2004- 2005. They have asserted that they had all been graded Outstanding in their AC Rs for the periods 2000-2001, 2001-2002 and 2002-2003 in accordance with the pro visions of the Assam Services (Confidential Roll) Rules, 1990 (hereinafter refer red to as the ’ACR Rules’) which ordain the procedure for writing the confidenti al report, review and acceptance thereof as well as consequent grading of the of ficer concerned. They have persistently maintained that this grading was in corr ect appreciation of their consistent, meritorious performance in the strategic a ssignments of the department with exemplary zeal and dexterity. However, for ext raneous and non germane considerations they were down graded for the subsequent years i.e. 2003-2004 and 2004-2005 to deliberately deny them the promotion to th e higher rank of Superintending Engineer with a view to favour those less deserv ing, but propitious to the authorities in power. They have contended that even on the application of the guidelines in the notification dated 28.04.2003 and t he marking scheme contemplated therein, they, on a consideration of their perfo rmance and seniority in service were entitled to make the grade in terms thereof for promotion as Superintending Engineer. However, on a manipulation of their A CRs for the years 2004 and 2005, they were deliberately down graded to miss the desired level for denying them the promotion. Referring to the notification date d 28.4.2003 the petitioners have contended that the same in the grade of Graduat e Engineer contemplated two categories of officers, (1) Class-A with a score of 21.96 and above computable on the basis of the marks awarded for the specified gradings in the ACR and (2) Class-B with the score 13.96 to below 21.96 on th e same determinants. According to them, they were purposely denied Class-A by l owering their gradings for the year 2004 and 2005 to Good by consciously overl ooking their performance on impertinent considerations. They have in particular, imputed arbitrariness and mala fide against the then Secretary of the Departm ent for having, by disregarding the records, interfered with the reports of the Reporting and Reviewing Officers, who they claimed had graded them Outstanding also for these years. They have asserted that the Secretary of the Department though the Accepting Authority had no personal knowledge or idea of their funct ional excellence and further, being the Chairman of the Selection Committee had no power to modify their ACRs to their detriment. Besides alleging want of fairn ess in State action for not being afforded an opportunity to represent against the proposed down grading of their ACRs, the petitioners have impeached the s election process as violative of both the Rules and have prayed for an appropri ate writ to interfere with the impugned decision of the Secretary of the Departm ent impoverishing their ACRs , annul the recommendations of the Selection Board and the impugned selection as well and to further direct the respondents to hold a fresh selection for promotion to the rank of Superintending Engineer by p lacing their cases before the Selection Board/Committee for consideration theref or after taking into account the gradings awarded by the Reporting and the Rev iewing officers. 5. The petitioner in WP(C) No.246/2007 in addition, challenged the validity of the notification dated 28.04.2003 being in contravention of the le tter and spirit of the judgment and order dated 07.04.2003 of this Court passe d in WP( C) Nos. 6274/2002 & 6606/2002 thereby denuding the Selection Board/C ommittee of its power and the meaningful assessment of the officers under the Rules for the promotions contemplated thereunder. He further maintained that h is ACRs for the period 01.01.2004 to 31.03.2004 and 01.04.2004 to 10.08.2004 had neither been prepared nor, necessary steps were taken in connection therewith f or which his performance for the said period remained unappraised. 5A. The State respondents in their affidavit through the Commissione r & Special Secretary of the Department while denying the charge of down grading of the petitioner’s ACRs for the years 2004 and 2005 on extraneous consideratio n to favour a chosen few, have categorically averred that the Accepting Authori ty in the exercise of his power under Rule 7(1) of the ACR Rules duly recorded his remarks in their concerned ACRs. While denying the imputation that the petit ioners have been deliberately denied promotion to the rank of Superintending Eng ineer, the answering respondents have contended that the gradings of the Aceptin g Authority in concerned ACRs of the writ petitioners being not adverse, were no t considered necessary to be communicated to them. Responding to the allegation that the respondent Sri Ajoy Ch. Pathak had been pr eferred for promotion though ineligible and unsuitable, a departmental proceedin g being pending against him, it has been clarified that the recommendation of th e Selection Board vis-a-vis the said officer has been kept in the sealed cover t o be considered only after the culmination of the proceeding. The State responde nts have disclosed that in terms of Rule 13(5) of the Rules, the Selection Boar d has recommended 39 officers in the rank of Executive Engineer for promotion f or filling up 20 probable vacancies of 2006 and that the names of one such offi cer is in the sealed cover. They have maintained that the appointing authority as required under Rule 13(2) of the Rules had furnished the names and particula rs of the required number of officers in order of seniority as many as four time s the number of vacancies to the Selection Board for its consideration. Accordin g to them, the names of the petitioners were included amongst the 80 officers wh ose candidatures were placed before the Selection Board in its meeting held on 2 8.7.2006. While denying the writ petitioners’ allegation that they were not con sidered for promotion, the answering respondents have contended that as they on the evaluation of the Selection Board could not secure the marks for their inclu sion in category A, they were not recommended for promotion. 6. While denying the writ petitioners’ claim of having earned Out standing grading for the periods 1996 to 2005 as clearly untenable, it has b een stated further that the Secretary of the Department having served in the fie ld in various capacities he was equipped with necessary knowledge and experien ce in connection with the projects associated with the experts engineers of th e Department and thus , as the Accepting Authority was fully competent to appra ise their performance and accordingly judged their ACRs. The respondents in cat egorical terms insisted that the modifications in the writ petitioners ACRs had been effected by the Accepting Aauthority in conformity with the mandates of Rul e 7(1) of the ACR Rules and that all assertions to the contrary are untenable. T hey dismissed the challenge to the validity of the selection process as frivolou s, the same according to them, having been conducted strictly in accordance with the prescription of the Rules. 7. The learned Single Judge on a scrutiny of the ACRs of the writ petitioners in WP( C) Nos. 4932, 4933,4934 and 4935/2006 concluded that though f or the years 2004 and 2005 they had been awarded Outstanding by the Reporting and Reviewing authorities, the Accepting authority initially classified them as Very Good and thereafter erased the word Very to retain the word Good s the finally accepted grading as Good . The learned Judge thus held the vi ew that the Departmental Promotion Committee/Selection Committee having consider ed the ACRs of the petitioners as above, they were placed in category-B and thei r inter se seniority, notwithstanding, they could not secure the promotional ber th in the rank of Superintending Engineer. So far as the petitioner in WP( C) No.246/2007 is concerned, the learned Single Judge recorded that he had been graded as Outstanding in his ACR for the year ending 2004 by the Reporting and Reviewing authorities which was scaled down to Good by the Accepting Authority. The learned Single Judge noticed that though the Reporting and Reviewing authorities had assessed the petitioner as Outs tanding on 31.12.2003, the Accepting authority’s endorsement as Good was mad e on 30.8.2004, the time lag being disproportionately and inexplicably enormous in the perspective of the period of one month prescribed by the ACR Rules for the Accepting authority to complete such assessment. The learned Single Judge w hile dilating on the approach of the authorities concerned in the matter of pr eparation and finalization of Annual Confidential Reports of the subordinate o fficials observed that the exercise ought to be essentially informed with a hig h degree of responsibility and administrative fairness requiring recording of reasons for valid down grading of ACRs of an officer. While referring to a c atena of decisions of the Apex Court enunciating such proposition and acknowl edging the power of the Accepting authority to award a grading lower than that recorded by the Reporting and the Reviewing authorities , the learned Single Jud ge held that in absence of any reason therefor in the facts and circumstances of the case vis-a-vis the writ petitioners, the down grading of their ACRs for t he years in question was unsustainable in law and adjudged the same to be so. N oticing, however, that in the meantime the Accepting Authority in respect of the ACRs of the respective years had retired, the learned Single Judge propounded t hat in terms of Rule 8(2)(iii) of the ACRs Rules, the remarks of the Reviewing O fficer would have to be treated as final. It was thus concluded on the basis of the of the writ petitioners’ gradings in the ACRs for the years ending 2004 and 2005 as recorded by the Reviewing Authority that they were entitled to be incl uded in category-A as visualized in Office Memorandum dated 28.4.2003. The foll owing operative directions were thus issued: 1) to reassess the cases of the writ petitioners in the light of the direc tions contained in the order ; 2) to grant promotion to them , if they are eligible therefor in the post of Superintending Engineer from such dates on which promotions had been made p ursuant to the recommendations of the Selection Committee dated 28.02.2006, if n ecessary, by displacing the private respondents ; 3) to initiate the required process as ordered and complete the same within a period 90 (ninety) days from the date of receipt of the copy of the order. 8. Being aggrieved as alluded hereinabove, the State of Assam in t he Public Works Department as well as the affected private respondents are in appeal. 9. Mr. Mazumdar has assiduously urged that as under the ACR Rules, the Reporting , Reviewing as well as the Accepting authorities are required t o have seen the actual performance of the officers concerned, detailed reasons need not be recorded by the Accepting authority in the event of his disagreeme nt with the gradings awarded by the other two authorities and therefore, the p lea based on want of reasons in the moderation of the writ petitioners’ ACRs f or the years 2004 and 2005 is clearly misconceived. Referring profusely to the ACR Rules, the learned senior counsel argued that thereunder the Reporting autho rity is not required to record the over all grading of the officers and, therefo re, such grading even if accorded, is of no significance. Contending that the no tification dated 28.04.2003, is construable to have been issued under Article 16 2 of the Constitution of India, the same read with Rule 12 of the Rules, provide d a salutary scheme for promotions in the department and in absence of any chall enge thereto or the selection process, the assailment of the select list is fall acious. As under the ACR Rules, the Reporting, Reviewing and the Accepting autho rities have to observe the performance of the officers concerned for a period of 90 days, their assessments are essentially independent of each other and theref ore, no reason need be recorded by the Accepting authority in case of a deviatio n in his grading(s) from those accorded by the other authorities. Mr. Mazumdar urged with reference to the form of the ACR as elaborated in Schedule-II to the ACR Rules that the Reporting Officer in the writ petitioners’ ACRs for the year ending 2004 and 2005 had no rational basis to grade them as Outstanding and therefore, their categorization as Good by the Accepting authority on an independent assessment of their service profiles cannot be per se denounced as illegal, arbitrary and unfair only, for the absence of elaborate reasons i n support thereof. The reasoning of the Accepting authority vis-a-vis the petit ioners’ aforementioned ACRs being otherwise endorsable from the records, the sam e cannot be faulted with. The grading awarded by the Accepting authority to the petitioners for these two years not being adverse as conceptualized in service j urisprudence, neither any reason in support thereof is necessary nor, the same n eed be communicated to the officer concerned, he urged. According to the learned Senior counsel, the impugned judgment and order being unsustainable in law, is thus liable to be interfered with. Mr. Mazumdar sought to buttress his argument s by relying on the following decisions of the Apex Court. (1) AIR 1974 SC 87, State of Uttar Pradesh and another, Appellants v. K.N.Mi sra and others, Respondents. (2) 1992 Supp(2) SCC 481, National Institute of Mental Health and Neuro Sci ences, Appellants v. Dr K. Kalyana Raman and Others, Respondents. (3) (1996) 2 SCC 363, U.P. Jal Nigam and Others, Appellants v. Prabhat Chand ra Jain and Others, Respondents. (4) (1997) 4 SCC 7, State of U.P., Appellant v. Yamuna Shanker Misra and Ano ther, Respondents. (5) (1997) 4 SCC 14, Swatantar Singh, Appellant v. State of Haryana, Respond ent. (6) (2005) 10 SCC 15, UPSC, Appellant v. K. Rajaiah and Others, Respondents. (7) (2006) 1 SCC 368, Union of India and Another, Appellants v. Major Bahadu r Singh, Respondent. The State respondents have produced the relevant ACRs for the perusal of the Co urt. 10. Mr. AK Goswami, Senior Advocate and Mr UK Nair, Advocate for the ot her appellants adopted the arguments put forward on behalf of the State. 11. Per contra, Mr. PK Goswami, Senior Advocate has argued that havi ng regard to the duty cast on the Reporting, Reviewing and Accepting authoritie s under the ACR Rules in preparing the Annual Confidential Reports of the subor dinate officers and the adverse consequences that would ensure, in case, the exe rcise undertaken therefor is either erroneous or unfair or informed with extra neous considerations, moderation of any grade accorded either by the Reporting a uthority or the Reviewing authority by the Accepting authority ought to be indis pensably supported by reasons disclosing the justification therefor. The learn ed Senior counsel underlined that the lowering of the grading of the writ peti tioners by the Accepting authority for the year ending 2004 and 2005 from Ou tstanding to Very Good and thereafter to Good is shorn of any reason what ever and thus is liable to be adjudged as non est in law. Mr. Goswami urged tha t the manner in which the alteration has been made and the proximity thereof wit h the date of Selection Committees result manifests lack of transparency and le gitimacy in the process involved to the serious prejudice of the petitioners a nd is thus wholly anthetitical to the edict of the ACR Rules and dictum of ad ministrative fairplay. The avowed purpose of the selection contemplated under th e Rules by applying the measure of merit and suitability with a due regard to th e seniority being to ferret out the candidates best suitable to serve the Depa rtment in the higher echelon of public service, the impugned action being on the face of the records illegal, arbitrary and whimsical has been rightly adjudged as such by the learned Single Judge. While admitting that the Accepting authori ty under Rule 7 of the ACR Rules is empowered to modify the grading awarded b y the Reporting and the Reviewing authorities, considering the nature of the pow er to be exercised relating thereto, Mr. Goswami urged that the essentiality of recording of reason in support of any such alteration, more particularly, if the assessment is less favourable to the officers concerned is implicit in the sa id provision so as to ensure administrative fairness, sanctitude and transparen cy in state action. As all the authorities associated in the preparation of t he ACRs and specially the Accepting authority whose evaluation is final, have to be necessarily objective and dispassionate in their out look in appraising the performance of a subordinate officer for his grading, reasons in support of their assessment are sine quinon for the validity thereof in law, he urged . Mr. Goswami contended that though the power vested in the authorities under the ACR Rules signify some degree of discretion inbuilt in it permitting an element of subjectivity in the process, recording of reasons is an essential c oncomitant of an honest , fair and bonafide assessment free from any aberr ation in the interest of public service. The learned Senior counsel sought to dr aw sustenance for his arguments from the following decisions : (1) AIR 1975 SC 550, Khudiram Das, Petitioner v. The State of West Bengal a nd others, Respondents. (2) AIR 1979 SC 1622, Gurdail Singh Fijji, Apopellant v. State of Punjab an d others, Respondents. (3) (1986) 3 SCC 103,Ram Chander, Appellant vs Union of India and Others, Re spondents. (4) (2007) 6 SCC 81, Bharat Petroleum Corporation Ltd. , Appellant v. Maddul a Ratanavalli and Others, Respondents. 12. Mr. Mishra, while endorsing the arguments of Mr. Goswami sought to rely on the following decisions of the Apex Court in : (1) (1986) 2 SCC 373, State of Gujarat, Appellant vs. S. Tripathy and Others , Respondents. (2) 1986(Supp) SCC 617, RS DASS, Appellant vs. Union of India and Others, Re spondents. (3) 1994(Supp) 3 SCC 424, S.Ramachadra Raju , Appellant vs. State of Orissa, Respondent. 13. Though, in a different context, the Apex Court in BHARAT PETROLE UM CORPORATION LTD. (Supra), while elaborating on the indispensability of fairne ss in executive action, opined that a decision, which is unfair or unreasonable, is unsustainable. An executive action must be informed with reason and objecti ve satisfaction must necessarily be the basis thereof, it held. 14. We have bestowed our thoughtful consideration on the competing a rguments advanced. Before adverting to the moot issue pertaining to the Annual C onfidential Reports it would be apt to notice the legal provisions bearing there on. All the writ petitioners admittedly are eligible to be considered for promot ion to the post of Superintending Engineer in the department. Under the Rules, t he post of Superintending Engineer is encadered in Class-I (Sr. Grade) as envisa ged in Rule 3 thereof. The post of Superintending Engineer, in terms of Rule 12 is to be filled up by promotion except in cases where for ’Good’ and sufficient reasons, the Governor may fill up the same or any other post in the Sr. Grade te mporarily by transfer or deputation from outside the services for specialized in vestigation, design and research works, if there is no suitable officer in servi ce available therefor. Rule 12(2) ordains that subject to suitability as may be decided by the Selectio n Board, composition whereof, depends on the posts involved as well as by the Ap pointing Authority and subject to possessing such qualification and experience a s may be prescribed, a member of the Service would be eligible for promotion to the corresponding higher post in the manner provided therein. The feeder post fo r promotion to the rank of Superintending Engineer is that of the Executive Engi neer. The academic qualification and other conditions of eligibility are as pres cribed by the Rules. 15. Rule 13 lays down that before the end of each year, the Governme nt would make an assessment of the likely number of vacancies to be filled up by promotion in the next year in each cadre. The Appointing Authority would furnis h to the Selection Board documents and informations with regard to as many offic ers in order of seniority as four times the number of vacancies so assessed for its examination for recommending a list of officers found suitable for promotion in order of preference. The documents to be so furnished amongst others include the character rolls and