Jammu & Kashmir High Court - Srinagar Bench

Baseer -Ul- Haq Hussami vs Ut Of J&K Through on 6 August, 2025

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HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR.

WP(C) 323/2023

Reserved on: 23.05.2025
Pronounced on: 06.08.2025

Baseer -Ul- Haq Hussami, D/O Abdul Haq Hussami
R/O Abubaker Colony, Habbak, Srinagar
...Petitioner(s)
Through: Mr. Altaf Haqani, Sr. Advocate with
Mr. Shakir Haqani, Adv.
Vs.
1. UT of J&K through
Commissioner/Secretary to Government Law Department,
Civil Sectt, Srinagar/Jammu
2. High Court of Jammu and Kashmir and Ladakh,
Srinagar/Jammu through its Registrar General
3. Principal Secretary to the
Hon'ble Chief Justice,
High court of Jammu & Kashmir and Ladakh, Srinagar
4. Registrar Judicial, Srinagar Wing of High Court of J&K and
Ladakh.
5. Salim Rashid Rather, Head Assistant
6. Sheikh Davood, Head Assistant
Respondent Nos. 5 and 6 C/o Registrar Judicial
High court of J&K and Ladakh, Srinagar
...Respondent(s)
Through Mr. M.I.Qadiri, Sr. Advocate for Respondent Nos. 2 to 4
None for respondent Nos. 5 and 6.

CORAM:
HON'BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE.
HON'BLE MR. JUSTICE RAJESH SEKHRI, JUDGE
JUDGEMENT

Per Wasim Sadiq Nargal, J

PRAYER

The instant writ petition has been filed on behalf of the petitioner, praying
for the following reliefs:-

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i) Writ, order or direction including one in the nature of Certiorari :-

a) quashing the impugned order- Annexure-l so far as the same
pertains to the promotion of respondents 5 and 6 over the head of
the petitioner in the post of the Head Assistant;

b) quashing the impugned order Annexure-ll rejecting the
petitioner's representation by a non-speaking order;

c) quashing the impugned entry of "below average" in the annual
confidential report of the petitioner for the year 2020, as conveyed
to her vide communications dated 4-12-2022 and 17-1-2023
(Annexures -III and IV).

ii) Writ, order or direction including one in the nature of Mandamus,
commanding upon the respondents not to give any effect to the
impugned orders and with a further direction upon them to accord
consideration to the claim of the petitioner for her promotion to
the post of Head Assistant w.e.f 24-11-2022, without taking into
consideration the adverse uncommunicated ACR of the year 2020
and grant her all the benefits of seniority, pay and grade alongwith
arrears.

FACTUAL MATRIX OF THE CASE

1. The petitioner, a Senior Assistant in the High Court of J&K and

Ladakh, challenges the order dated 24.11.2022, whereby she was

denied promotion to the post of the Head Assistant and superseded by

her juniors. The respondents justified the denial on the ground that

the petitioner secured only 54% (19 points) in the assessment of her

Annual Confidential Reports (ACRs) for the period 2017-2021,

falling short of the mandatory 65% aggregate marks prescribed under

Order No. 415 dated 05.10.2020. The petitioner contends that the

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adverse ACRs recorded for 2019-2021 were never communicated to

her, violating her right to make representations against them. She

further contends that the guidelines applied for her assessment were

originally framed for the post of Gazetted staff and could not be

extended to her post without publication by way of a notification,

rendering them inapplicable and unenforceable. The petitioner seeks

directions for her promotion with retrospective effect from the date

her juniors were promoted.

2. The respondents, on the other hand, admit that there is no record of

communication of adverse ACRs but submitted that the petitioner's

failure to achieve the 65% aggregate marks, disqualified her from

promotion. The further stand of the respondents 2 to 4 is that the

petitioner did not challenge the validity of Order No. 415 in her writ

petition, and as such, no relief can be granted on this ground. They

further contend that publication of the executive order by way of a

notification was not required in the absence of any statutory mandate

and that the order operates both retrospectively and prospectively for

assessing promotions. Even if Order No. 415 is excluded, the

respondents submit that promotions to the post of Head Assistant are

based on seniority-cum-merit, and evaluation of ACRs remains an

integral part of the process. Accordingly, they pray for dismissal of

the writ petition while assuring that the petitioner's case for

promotion will be considered in future as per the applicable rules and

practices.

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SUBMISSIONS ON THE BEHALF OF THE PETITIONER

3. Learned Counsel appearing on behalf of the petitioner, submits that

the impugned orders denying promotion to the petitioner are illegal,

arbitrary, and contrary to settled principles of law, and are liable to be

quashed. The said orders are based on an adverse Annual

Confidential Report (ACR) for the year 2020, which was not

communicated to the petitioner at the relevant time. The failure to

communicate the adverse ACR deprives the petitioner of an

opportunity to represent against the same, which is a fundamental

violation of law.

4. It is the specific case of the petitioner that the respondents, while

considering her case for promotion, were not aware of the fact that

the petitioner had rendered unblemished service for over fifteen

years, except for the alleged adverse ACR for 2020. This aspect of

the matter was deliberately concealed and suppressed by the

authorities in their decision-making process. The respondents failed

to appreciate that the petitioner was on sanctioned medical leave for a

substantial period in 2020 and that the entire year was severely

affected by the COVID-19 pandemic, during which the petitioner was

not engaged in any misconduct that could justify a "below average"

rating in her ACR.

5. The learned senior counsel, Mr. Haqani, further submits that the non-

communication of the adverse ACR to the petitioner goes to the root

of the case and renders the denial of promotion legally unsustainable.

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6. Learned senior counsel also submits that the respondents have

committed a grave illegality by rejecting the petitioner's

representation vide a non-speaking order dated 16.12.2022. Such an

order, passed without assigning reasons, reflects complete non-

application of mind and violates the settled principle that reasons are

the soul of administrative and quasi-judicial decisions.

7. The learned counsel highlights that the petitioner was senior to

respondents No. 5 and 6 in the seniority list and was otherwise fully

eligible for promotion. Denial of promotion to the petitioner, while

promoting her juniors, is a clear case of supersession and violates the

principle of seniority-cum-merit applicable in such cases.

8. It is further submitted that the respondents have mechanically applied

guidelines for assessment and promotion which were neither

applicable to the post of the petitioner nor duly published or notified.

This lack of proper procedure reflects arbitrariness and renders the

impugned orders legally unsustainable.

9. Learned Counsel lastly submits that the petitioner has been subjected

to serious prejudice as a result of the impugned orders and prays that

the impugned orders be quashed. It is further prayed that the

respondents be directed to consider the petitioner's claim for

promotion to the post of Head Assistant w.e.f. 24.11.2022, with all

consequential benefits, without taking into account the

uncommunicated and unjustified ACR for the year 2020.

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SUBMISSIONS ON BEHALF OF THE RESPONDENTS

10. Per Contra, The Learned Counsel appearing on behalf of the

respondents submits that the writ petition filed by the petitioner is

devoid of merit, misconceived, and liable to be dismissed. The denial

of promotion to the petitioner is neither arbitrary nor illegal but is

based on objective criteria and service records duly considered by the

competent authority.

11. It is submitted that the petitioner failed to secure the mandatory

aggregate of 65% marks in her Annual Confidential Reports (ACRs)

for the preceding five years, as required under Order No. 415 dated

05.10.2020. This order, issued with the approval of the Hon'ble Chief

Justice and Administrative Committee of the High Court, lays down a

uniform standard for evaluating merit in promotions and has been

consistently applied for all non-gazetted posts in the High Court over

the last several years.

12. The learned counsel further submits that the petitioner has not

challenged the validity or legality of Order No. 415 in her writ

petition, and no relief has been sought against it in the prayer clause.

In the absence of such a challenge, the petitioner cannot now contend

that the said order is inapplicable to her case. Reliance is placed on

Mukesh Singh Kushwah v. State of MP, 2002 (1) SCC 598, wherein

it was held that a relief not claimed, cannot be granted by the Court.

13. It is the specific case of the respondents that the petitioner's adverse

ACR for the year 2020, though not formally communicated, was duly

recorded in the service records and formed part of the assessment

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process for promotions. The absence of formal communication does

not by itself vitiate the assessment, especially when the evaluation is

based on cumulative service records.

14. Learned counsel, Mr. M.I. Qadari, Senior Advocate, submits that the

stand of the petitioner, requiring publication of executive orders in

the Gazette is misplaced. There is no statutory mandate under the

applicable service rules requiring publication of Order No. 415 in the

official Gazette. The order was issued as an administrative instruction

to streamline promotions and ensure merit-based advancement.

15. It is further submitted that even if Order No. 415 dated 05.10.2020 is

excluded, the principle of seniority-cum-merit as envisaged under

Order No. 517 dated 24.10.2008 requires consideration of both

seniority and merit. The petitioner's merit was duly assessed on the

basis of her ACRs for the preceding five years, and she did not meet

the required standard for promotion.

16. Learned senior counsel further emphasizes that the petitioner's

supersession does not violate any of her rights, as promotion is not a

matter of right but is subject to availability of posts and suitability of

the candidate. The respondents acted in accordance with established

practice and procedure while denying promotion to the petitioner.

17. In view of the above, the learned counsel for the respondents submits

that the impugned orders are legal, justified, and passed after due

consideration of the petitioner's service record. The writ petition is

without merit and liable to be dismissed.

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ISSUES TAKEN UP FOR DETERMINATION

18. Heard learned counsel for both the parties at length and carefully

perused the material on record. The following issues arise for

determination:

Issue no. i: Whether the non-communication of adverse entries
in the petitioner's Annual Confidential Reports
(ACRs) renders the respondent's decision to deny
promotion legally unsustainable.

Issue no. ii: Whether Executive Order No. 415 dated 05.10.2020,
originally applicable to gazetted staff, could have
been extended and applied to non-gazetted staff
without proper notification highlighting the revised
benchmark for promotion?

Issue no. iii: Whether Executive Order No. 415 operates
retrospectively so as to govern the consideration of
promotions pertaining to a period prior to its
issuance.

Issue no. iv: Whether the recording of the petitioner's Annual
Confidential Report (ACR) for the year 2020 during
the period of her sanctioned medical leave due to
COVID-19, without due communication of the
recorded remarks irrespective of whether they were
favourable, average, or adverse vitiates the
procedural fairness required under service
jurisprudence.

LEGAL ANALYSIS

19. The issues framed above are now taken up for determination by us.

Each issue is examined individually in the following paragraphs,

upon a careful consideration of the pleadings, the evidence placed on

record, and the applicable legal principles as expounded in judicial

precedents.

20. ISSUE No. I: Whether the non-communication of adverse
Annual Confidential Reports (ACRs) vitiates the respondent's
decision to deny promotion to the petitioner.

At the very core of the petitioner's grievance lies the allegation that

her promotion was denied on the basis of adverse entries in her

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Annual Confidential Reports (ACRs) for the years 2019-2020 and

2021, which were admittedly never communicated to her. This Court

considers it essential to first address this issue, as it strikes at the

foundation of fairness, transparency, and adherence to the principles

of natural justice in service jurisprudence. We find it imperative to

first address the issue of non-communication of adverse ACRs, as it

strikes at the heart of fairness and natural justice in public service

law.

21. Before deciding the above issue, we deem it proper to refer to the

judgment rendered by The Apex Court in,
Dev Dutt v. Union of

India
, (2008) 8 SCC 725, the Hon'ble Supreme Court unequivocally

held that:

"17. In our opinion, every entry in the ACR of a public servant
must be communicated to him within a reasonable period,
whether it is a poor, fair, average, good or very good entry. This
is because non-communication of such an entry may adversely
affect the employee in two ways: (1) had the entry been
communicated to him he would know about the assessment of his
work and conduct by his superiors, which would enable him to
improve his work in future: (2) he would have an opportunity of
making a representation against the entry if he feels it is
unjustified, and pray for its upgradation. Hence, non-
communication of an entry is arbitrary, and it has been held by
the Constitution Bench decision of this Court in
Maneka Gandhi
v. Union of India
? that arbitrariness violates
Article 14
of the
Constitution."

22. The Court reasoned that the right of an employee to be informed of

any adverse material recorded in their service dossier is a

fundamental facet of fairness, accountability, and transparency in

service jurisprudence. This right assumes greater significance where

such adverse material is proposed to be relied upon to deny

promotional benefits or career advancement. The principles of audi
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alteram partem, which mandate that no individual shall be

condemned unheard, apply with full force to service matters where

adverse entries in Annual Confidential Reports (ACRs) have a direct

bearing on the employee's rights and legitimate expectations. Denial

of such an opportunity not only violates natural justice but also

renders any decision based on uncommunicated material, legally

unsustainable.

23. The law
laid down by
the Apex Court in
Dev Dutt v. Union of India
,

(2008) has been reiterated in
Sukhdev Singh vs. Union Of India and

others
, 2013 (9) SCC 566 as under:

"5. In paras 37 and 41 of the Report this Court then observed as
follows: (Dev Dutt case-, SCC pp. 737-38)
"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 authority concerned, and
the authority concerned 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
of the Constitution."

24. It is a well-established principle in service jurisprudence that any

adverse entry in the Annual Confidential Report (ACR) must be

communicated to the concerned employee in a timely manner,
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particularly when such entry is likely to affect the employee's service

prospects, including promotion.

25. Keeping in view the above, we find that lowering down of ACRs

from "very good" to "below average" would require the respondents

to give an opportunity of hearing to the petitioner after conveying the

said remarks.

26. In the present case, the respondents have admitted that the adverse

Annual Confidential Reports (ACRs) for the years 2019-2020 and

2021 were not communicated to the petitioner, thereby depriving her

of the opportunity to make a representation or seek their review in

accordance with law. The consideration of such uncommunicated

entries while denying her promotion is in violation of the principles

of natural justice, particularly the rule of audi alteram partem, and is

manifestly arbitrary, thus offending
Article 14
of the Constitution. As

laid down in

Dev Dutt v. Union of India
and consistently reiterated

in subsequent judgments, the reliance on uncommunicated adverse

remarks in ACRs vitiates the entire promotion process, rendering the

consequential decision invalid and unsustainable in law. The

respondents' failure to adhere to the mandatory requirement of

communication has, therefore, not only infringed the petitioner's

statutory and constitutional rights but has also tainted the selection

process with illegality.

27. Therefore, we hold that the non-communication of the relevant ACRs

is the most fundamental flaw and strikes at the very root of the

decision-making process adopted by the respondents. It constitutes a
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grave violation of the principles of natural justice and renders the

entire exercise manifestly arbitrary and procedurally unfair. Such a

fundamental defect cannot be cured or overlooked and decision taken

by the respondents by virtue of orders impugned, cannot sustain the

test of law and is liable to be rejected.

Issue no. I, is decided accordingly.

28. ISSUE No.II: Whether Executive Order No. 415 dated 05.10.2020,
originally applicable to gazetted staff, could have been extended
and applied to non-gazetted staff without proper notification
highlighting the revised benchmark for promotion?

29. Upon a careful examination of the material on record and in light of

the settled legal principles, this Court is of the considered view that

Executive Order No. 415 dated 05.10.2020, which prescribed a revised

benchmark of 65% aggregate marks in Annual Confidential Reports

(ACRs) for promotion, was originally intended to apply to gazetted

staff only, and its subsequent extension to non-gazetted staff without

any formal notification or publication, amounts to a procedural

illegality.

30. The records reveal that there was no contemporaneous notification,

office memorandum, or circular issued by the Registrar General or

the Administrative Department that expressly made the said executive

order applicable to non-gazetted employees. No attempt was made to

notify or circulate the revised benchmark among non-gazetted

employees, nor was any opportunity afforded to them to acquaint
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themselves with or prepare for the application of such an elevated

standard.

31. In the absence of any such formal notification, the affected category

of non-gazetted staff had no reasonable means of knowing that the

eligibility criteria for promotion had been altered. The fundamental

principles of natural justice demand that rules or standards that

impose new obligations or alter existing service conditions, must be

duly published and communicated to those affected.

32. With a view to fortify this principle, we deem it proper to refer to the

judgement passed by the Apex Court in
Harla v. State of Rajasthan
,

AIR 1951 SC 467, wherein the Hon'ble Supreme Court

authoritatively held:

9. Natural justice requires that before a law can become
operative it must be promulgated or published. It must be
broadcast in some recognisable way so that all men may know
what it is; or, at the very least, there must be some special rule or
regulation or customary channel by or through which such
knowledge can be acquired with the exercise of due and
reasonable diligence. The thought that a decision reached in the
secret recesses of a chamber to which the public have no access
and to which even their accredited representatives have no access
and of which they can normally know nothing, can nevertheless
affect their lives, liberty and property by the mere passing of a
resolution without anything more is abhorrent to civilised man. It
shocks his conscience. In the absence therefore of any law, rule,
regulation or custom, we hold that a law cannot come into being
in this way. Promulgation or publication of some reasonable sort
is essential.

33. This principle flows from the broader doctrine of audi alteram

partem and the right to natural justice, as individuals cannot be

expected to comply with unknown norms or be penalised for their

breach.

34. Similarly, in
B.K. Srinivasan v. State of Karnataka
, (1987) 1 SCC

658, the Hon'ble Supreme Court reiterated:

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15. There can be no doubt about the proposition that where a
law, whether parliamentary or subordinate, demands
compliance, those that are governed must be notified directly and
reliably of the law and all changes and additions made to it by
various processes. Whether law is viewed from the standpoint of
the "conscientious good man" seeking to abide by the law or
from the standpoint of justice Holmes's "unconscientious bad
man" seeking to avoid the law, law must be known, that is to say,
it must be so made that it can be known. We know that delegated
or subordinate legislation is all-pervasive and that there is hardly
any field of activity where governance by delegated or
subordinate legislative powers is not as important if not more
important, than governance by parliamentary legislation. But
unlike parliamentary legislation which is publicly made,
delegated or subordinate legislation is often made unobtrusively
in the chambers of a Minister, a Secretary to the Government or
other official dignitary. It is, therefore, necessary that
subordinate legislation, in order to take effect, must be published
or promulgated in some suitable manner, whether such
publication or promulgation is prescribed by the parent statute or
not. It will then take effect from the date of such publication or
promulgation. Where the parent statute prescribes the mode of
publication or promulgation that mode must be followed. Where
the parent statute is silent, but the subordinate legislation itself
prescribes the manner of publication, such a mode of publication
may be sufficient, if reasonable. If the subordinate legislation
does not prescribe the mode of publication or if the subordinate
legislation prescribes a plainly unreasonable mode of
publication, it will take effect only when it is published through
the customarily recognised official channel, namely, the Official
Gazette or some other reasonable mode of publication. There
may be subordinate legislation which is concerned with a few
individuals or is confined to small local areas. In such cases
publication or promulgation by other means may be sufficient.

The court further observed that administrative instructions, even if

validly issued, must be publicised effectively if they alter existing

rights or impose new burdens.

35. The Hon'ble Supreme Court in case titled as
R.Ranjith Singh & Ors

v State Of Tamil Nadu & Ors.
reported as 2025 SCC Online SC

1009, has made it clear that:

21. This Court in case of Jaiveer Singh v State of
Utrakhand 2023INSC 1204 has held as under:

34. It can thus be seen that it is a trite law that the
Government cannot amend or supersede statutory
rules by administrative instructions, but if the rules
are silent on any particular point, it can fill up the
gaps and supplement the rules and issue
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instructions not inconsistent with the rules already
framed. It is a settled proposition of law that an
authority cannot issue orders/office memorandum/
executive instructions in contravention of the
statutory rules. However, instructions can be issued
only to supplement the statutory rules but not to
supplant it. This Court has again held in the
aforesaid case that the Government cannot issue
executive instructions in contravention of the
statutory rule.

In the present case, Executive Order No. 415 dated 05.10.2020,

which introduced a new benchmark for promotion eligibility, was

neither traceable to any statutory rule nor duly notified or

communicated to the affected employees. Its retrospective

application, therefore, not only offends the principle of administrative

fairness and transparency but also violates the doctrine of legitimate

expectation. The attempt to apply the benchmark fixed under

Executive Order No. 415, originally confined to gazetted staff, to

non-gazetted employees without any formal notification or

publication is wholly arbitrary and violates the doctrine of legitimate

expectation and administrative fairness.

36. Moreover, nothing has been placed on record to show that the

Registrar General, after obtaining approval from the Hon'ble Chief

Justice as the competent authority, ever took steps to formally notify

this change or to make it applicable to the cadre of non-gazetted

employees. This constitutes a serious administrative omission,

particularly when the order was used to deny promotion to the

petitioner.

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37. In light of the above, this Court holds that Executive Order No. 415

could not have been extended to non-gazetted employees without

formal notification and communication, especially when it introduced

a substantive change in promotion criteria. The failure to notify the

same has resulted in denial of due opportunity to the petitioner,

rendering the action arbitrary and violative of
Articles 14
and
of

the Constitution of India.

38. ISSUE NO. III: Whether Executive Order No. 415 operates
retrospectively so as to govern the consideration of promotions
pertaining to a period prior to its issuance.

It is now trite in law that executive orders or administrative

instructions altering service conditions cannot operate retrospectively

unless the language of the order expressly provides for such an effect.

Retrospective application is generally frowned upon

as it offends the principles of fairness and violates vested rights.

39. This principle was reiterated in
State of Punjab v. Bhajan Kaur
,

(2008) 12 SCC 112, where the Apex Court observed:

"9. A statute is presumed to be prospective unless held to be
retrospective, either expressly or by necessary implication. A
substantive law is presumed to be prospective. It is one of the
facets of the rule of law."

40. Further the Hon'ble Supreme Court in the case titled
Madishetti Bala

Ramul v. Land Acquisition Officer
reported in (2007) 9 SCC 650

has held as under:

19.
In
Land Acquisition Officer-cum-SWO v. B.V. Reddy and
Sons
this Court opined that Section 25 being not a
procedural provision will have no retrospective effect, holding :

(SCC p. 471, para 6)
"6. Coming to the second question, it is a well-settled principle of
construction that a substantive provision cannot be retrospective
in nature unless the provision itself indicates the same. The
amended provision of Section 25 nowhere indicates that the same
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would have any retrospective effect. Consequently, therefore, it
would apply to all acquisitions made subsequent to 24-9-1984,
the date on which Act 68 of 1984 came into force. The Land
Acquisition (Amendment) Bill of 1982 was introduced in
Parliament on 30-4-1982 and came into operation with effect
from 24-9-1984.

41. In the present case, Order No. 415 dated 05.10.2020 introduced a

new criterion of securing 65% aggregate marks in Annual

Confidential Reports (ACRs) as a precondition for promotion. The

petitioner's case for promotion was under consideration for the period

2017-2021, a substantial portion of which precedes the issuance of

the impugned order.

42. The application of the newly introduced ACR criterion of securing

65% aggregate marks to the period in question effectively alter the

service conditions of the petitioner in a retrospective manner. Such

application prejudices her vested right to be considered for promotion

under the previously existing criteria, which did not prescribe any

minimum aggregate threshold for ACRs.

43. In the present case, the application of Order No. 415 introduces a new

obligation requiring employees to secure a minimum of 65%

aggregate marks in their Annual Confidential Reports (ACRs) for

eligibility to promotion. This requirement is sought to be enforced in

respect of past years for which the petitioner's ACRs had already

been recorded without any prior knowledge of such a threshold.

Imposing this condition retrospectively, squarely falls within the

mischief of retrospective operation and is legally impermissible.
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44. The Honble Apex court in case titled as
Land Acquisition Officer

Cum DSWO, A.P v. B.V. Reddy & Sons
, reported in (2002) 3 SCC

463 has consistently held that:

"6. Coming to the second question, it is a well-settled principle of
construction that a substantive provision cannot be retrospective
in nature unless the provision itself indicates the same. The
amended provision of Section 25 nowhere indicates that the same
would have any retrospective effect. Consequently, therefore, it
would apply to all acquisitions made subsequent to 24-9-1984,
the date on which Act 68 of 1984 came into force. The Land
Acquisition (Amendment) Bill of 1982 was introduced in
Parliament on 30-4-1982 and came into operation with effect
from 24-9-1984. Under the amendment in question, the
provisions of Section 23(2) dealing with solatium were amended
and Section 30(2) of the amended Act provided that the
provisions of subsection (2) of Section 23 of the principal Act as
amended by clause (b) of Section 15 shall apply and shall be
deemed to have applied, also to and in relation to any award
made by the Collector or court or to any order passed by the High
Court or the Supreme Court in appeal against any such award
under the provisions of the principal Act, after 30-4-1982 and
before the commencement of the Act. It is because of the
aforesaid provision, the question cropped up as to whether in
respect of an award passed by the Collector between the two
dates, the amended provision will have an application or not and
that question has been answered by this Court in the Constitution
Bench decision in
Union of India v. Raghubir Singh
. Sub-section
(2) of Section 30 has at all no reference to the provisions of
Section 25 of the Act. In that view of the matter, question of
applicability of the amended provisions of Section 25 of the Act to
an award of the Collector made earlier to the amendment and the
matter was pending in appeal, does not arise. In our considered
opinion, the amended provisions of Section 25 of the Act, not
being retrospective in nature, the case in hand would be
governed by the unamended provisions of Section 25 of the Act."

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45. We are firmly of the view that the retrospective application of

Executive Order No. 415 dated 05.10.2020 to promotion processes

covering the period from 2017 to 2021 is neither justified nor legally

sustainable. The said order introduced a new eligibility condition

requiring 65% aggregate marks in the ACRs which was neither

notified nor communicated to the employees concerned at the

relevant time. As such, the petitioner and similarly placed employees

were deprived of an fair opportunity to comply with or address this

new requirement. Imposing such a standard retrospectively not only

unsettles vested rights but also causes serious prejudice and

administrative uncertainty. Revisiting settled promotions after several

years disturbs the finality of service matters, generates avoidable

litigation, and undermines institutional fairness. In our view,

enforcing an unpublished and uncommunicated executive instruction

with retrospective effect is arbitrary, unreasonable, and impermissible

both in law and in equity.

46. Accordingly, the respondents' attempt to apply the new standard

introduced under Executive Order No. 415 requiring a minimum of

65% aggregate marks in Annual Confidential Reports (ACRs) to the

petitioner's case is legally unsustainable. Such retrospective

application of a criterion that was neither in existence nor

communicated during the relevant assessment years directly offends

the well-settled principle of non- retrospectivity in service law. It also

violates the guarantee of fairness and equality enshrined under

Article 14
of the Constitution, as administrative authorities are
20 | P a g e WP(C)323/2023

required to act in a just, transparent, and non-arbitrary manner.

Moreover, this action undermines the doctrine of legitimate

expectation, which protects employees from arbitrary alterations of

service conditions and ensures that they are not prejudiced by

changes introduced without adequate prior notice or opportunity to

adjust their conduct.

47. Order No. 415, having been issued on 05.10.2020, cannot lawfully be

applied to the petitioner's case retrospectively. Thus, we hold that, its

application to a period prior to its issuance is legally unsustainable,

arbitrary, and violative of the petitioner's rights.

Issue no. III is decided, accordingly.

48. ISSUE NO. IV: Whether the recording of the petitioner's Annual
Confidential Report (ACR) for the year 2020 during the period of
her sanctioned medical leave due to COVID-19, without due
communication of the recorded remarks irrespective of whether
they were favourable, average, or adverse vitiates the procedural
fairness required under service jurisprudence?

49. An ACR is meant to be an objective assessment of an employee's

performance, conduct, and work output during a defined reporting

period. When an employee is on sanctioned leave particularly for

medical reasons such as COVID-19, he or she is not actively

discharging duties and therefore cannot be evaluated on performance

metrics during that time. Recording adverse remarks under such

circumstances can be inherently unfair and arbitrary, as it is not based

on active service or observable conduct during the period in question.

Further, the principles of natural justice demand that any evaluation

which may adversely affect an employee's rights such as eligibility
21 | P a g e WP(C)323/2023

for promotion or career advancement must be transparent, fair, and

objectively grounded. An adverse ACR recorded while the employee

was legitimately absent from duty violates this principle, as the

employee has no opportunity to demonstrate performance or defend

against subjective assessments.

50. Moreover, as held by the Hon'ble Supreme Court in Dev Dutt v.

Union of India [(2008) 8 SCC 725], even non-adverse or 'average'

entries must be communicated if they can impact promotional

prospects. It logically follows that adverse remarks recorded during a

period of sanctioned leave, without any valid basis tied to actual

performance, must be communicated with reasons and an opportunity

for the employee to represent against them. Failing to do so renders

such entries procedurally and substantively defective. In addition,

departmental rules, executive instructions, and settled judicial

precedent all underscore that recording of ACRs must reflect actual

work and conduct not presumptions or administrative convenience.

51. In light of the above, recording an adverse ACR during sanctioned

leave especially without due communication cannot withstand legal

scrutiny. It is not only administratively improper, but also vitiates the

evaluation process, thereby compromising the employee's right to

fair consideration in matters of promotion, postings, and other

service benefits.

22 | P a g e WP(C)323/2023

52. It is the specific stand of the petitioner that she was on duly

sanctioned medical leave for a substantial period in 2020 owing to

COVID-19 and related complications. Despite this, her performance

for that year was assessed as "below average." Recording an adverse

Annual Confidential Report (ACR) during a period of sanctioned

leave raises serious questions about the fairness, legality, and

propriety of such an evaluation.

53. The law is clear that no adverse remark can be made in an ACR

unless it is based on concrete material reflecting actual work or

misconduct during the reporting period.

54. In the present case, there is no material on record to show that the

petitioner was either engaged in any work or guilty of any misconduct

during her sanctioned leave. Rather, the respondents appear to have

mechanically recorded a "below average" rating without assessing

whether she had an opportunity to demonstrate her performance. Such

action fails the test of fairness, non-arbitrariness, and application of

mind, which are cornerstones of service jurisprudence.

55. This Court also takes judicial notice of the fact that the COVID-19

pandemic constituted an extraordinary public health emergency,

wherein employees across the spectrum were affected physically and

psychologically. Many were absent from work not by choice, but due

to circumstances beyond their control. To penalise an employee for

absence during such a period, particularly when the leave was duly
23 | P a g e WP(C)323/2023

sanctioned, is not only legally untenable but also violates the

principles of equity and humane administration.

56. In light of the above, recording an adverse ACR during sanctioned

leave especially without due communication cannot withstand legal

scrutiny. It is not only administratively improper, but also vitiates the

evaluation process, thereby compromising the employee's right to

fair consideration in matters of promotion, postings, and other service

benefits.

57. Therefore, we hold that recording a "below average" ACR for the

petitioner during her period of sanctioned medical leave for COVID-

19, is patently unjustified, arbitrary, and legally unsustainable. The

said adverse entry is liable to be set aside, and any reliance on it for

denying her promotion, is illegal and vitiates the entire process of

consideration.

Issue no. IV, is decided accordingly.

CONCLUSION

58. In light of the foregoing analysis, we find that the denial of

promotion to the petitioner on the basis of uncommunicated adverse

Annual Confidential Reports (ACRs), amounts to a gross violation of

the principles of natural justice. It is a settled position in law that any

material adverse to the interest of an employee, if relied upon to deny

promotion or other career advancement must be duly communicated

so as to enable the employee to make an effective representation. The

failure of the respondents to communicate such ACRs deprived the
24 | P a g e WP(C)323/2023

petitioner of this vital procedural safeguard and renders the entire

process unsustainable in law.

59. Further, we hold that Executive Order No. 415 dated 05.10.2020,

which imposes conditions materially affecting the service rights and

legitimate expectations of employees, required proper publication,

either in the Official Gazette or through another effective mode of

communication. In the absence of such publication or

communication, the said order cannot be enforced against the

petitioner. Administrative instructions that remain un-notified, cannot

be used to alter the service conditions of employees to their

detriment.

60. The retrospective application of Executive Order No. 415, dated

05.10.2020, to govern promotions for a period predating its issuance,

is wholly untenable in law. It is a settled principle in service

jurisprudence that administrative orders or executive instructions

altering service conditions cannot operate retrospectively unless there

is clear and express statutory sanction authorising such retrospective

effect. In the present case, the respondents have sought to apply the

newly introduced criterion of securing a minimum of 65% aggregate

marks in Annual Confidential Reports (ACRs) to the petitioner's

promotion assessment for the period 2017-2021. This approach is

legally impermissible, as it imposes an additional eligibility condition

for a period during which the petitioner had no notice or opportunity

to meet such a requirement. The respondents' reliance on this

uncommunicated and un-notified order to retrospectively deny the
25 | P a g e WP(C)323/2023

petitioner her due consideration for promotion, not only contravenes

the principles of fairness and non-arbitrariness under
Article 14
of the

Constitution but also prejudices her vested right to be assessed under

the criteria that was in force during the relevant time.

61. Further, the stand taken by the respondents that the criteria prescribed

under executive order no.415 are intended to apply to non-gazetted

staff, does not absolve them of their obligation to ensure wide

publicity and due notification of the said order. The respondents were

duty bound to notify all employees, including those to whom the

rules would apply, so that they could be made aware of the

applicability of the benchmark criteria. Mere internal application or

selective enforcement cannot suffice to meet the requirement of

transparency and procedural fairness.

62. If the intention was to extend the applicability of the 65%

benchmark, which was originally framed for gazetted officers, to

non-gazetted staff as well, then the respondents ought to have either

amended the relevant rules or issued a formal corrigendum clarifying

the same. Only upon such due notification could employees be

expected to make a conscious and informed effort to achieve the

prescribed benchmark. Failure to do so renders the application of the

criteria arbitrary and unsustainable in law.

63. In the absence of any published notification or formal communication

extending the applicability of the benchmark to non-gazetted

employees, it is unreasonable to expect them to anticipate such

standards or orient their performance accordingly. The retrospective
26 | P a g e WP(C)323/2023

application of the rule that was neither made known nor duly

enforced is plainly contrary to law. It violates the principle of legal

certainty, non-arbitrariness and
article 14
of the constitution.

64. We are of the considered view that the respondents were legally

bound to give vide publicity to the order if they intended to apply it to

the non-gazetted employees. They cannot rely on internal decisions

or informal practices when the consequences affect the service rights

of individuals. Without proper publication, affected employees cannot

be expected to follow or comply with such criteria.

65. Critically, the recording of an adverse ACR for the year 2020 when

the petitioner was on sanctioned medical leave due to COVID-19

pandemic, is patently arbitrary and unsupported by any material.

Penalising an employee for a period of illness beyond her control,

particularly during a global pandemic, violates not only established

legal principles but also the broader tenets of fairness and equity in

public employment.

66. Judicial precedents lend unequivocal support to the petitioner's case.

Courts have consistently held that uncommunicated adverse entries

and unpublished administrative instructions cannot form the basis for

adverse decisions affecting employees' service rights. The

petitioner's claim for promotion with retrospective effect from the

date on which her juniors were promoted is, therefore, well founded

and deserves to be upheld.

67. In weighing the equities of the case, we are persuaded that the

petitioner has suffered substantial prejudice due to administrative
27 | P a g e WP(C)323/2023

lapses, entirely beyond her control. Granting the relief sought would

not only vindicate her individual rights but also affirm constitutional

values of fairness, equality, and accountability in public service. It

would serve as a necessary reminder to the executive of the

importance of maintaining transparent and just administrative

practices.

68. Before parting, we direct the Registrar General of the High Court of

J&K and Ladakh that if executive order No. 415 dated 05.10.2020 is

to be applied to the non-gazetted staff of the High Court, it shall be

duly communicated, notified, and published through appropriate

mode to ensure that all affected employees are given proper notice of

its contents and implications and issue a formal notification applying

executive order No. 415 to non-gazetted employees only after

obtaining approval from Hon'ble the Chief Justice of the High Court.

The notification shall specifically mention the benchmark criteria and

its effective date.

69. Any attempt to enforce the said order without adherence to these

procedural safeguards, shall render its application vulnerable to legal

challenge.

70. In view of the above findings, the writ petition is allowed and

disposed of in the following manner :

i) Quashing the impugned order Annexure-ll rejecting

the petitioner's representation without assigning

any cogent reasons for such rejection.

28 | P a g e WP(C)323/2023

ii) Quashing the impugned entry of "below average" in

the annual confidential report of the petitioner for

the year 2020.

71. We further hold that the impugned action denying the petitioner's

promotion cannot be sustained in law. Accordingly, the respondents

are directed to accord consideration to the claim of petitioner for

promotion to the post of Head Assistant with retrospective effect

from the date her juniors were promoted i.e. 24.11.2022 as Head

Assistant, and to grant her all consequential benefits of seniority and

monetary in accordance with law without taking into consideration

the adverse ACR of the year 2020.

72. Disposed of.

(Rajesh Sekhri) (Wasim Sadiq Nargal)
Judge Judge

Jammu:
06. 08.2025
Gh.Nabi/Secy
Whether the Judgment is Reportable: Yes/No
Whether the Judgment is Speaking: Yes/No