The Supreme Court has observed that employee has a right to receive his Annual Confidential Report (ACR) well within time before the Departmental Promotion Committee (DPC) meeting is convened so as he/ she can access the remedy to challenge the same before any decision is taken.
A division bench of Justice M.R. Shah and Justice C.T. Ravikumar while adjudicating upon a petition challenging the DPC proceedings on the ground that ACR was provided one day prior only while the remedy to challenge the same runs for 15 days noted that it is equivalent to non-disclosure of the evaluation report.
Brief Facts of the Case
The petitioner-herein, was denied promotion to the post of Assistant Registrar. She initially had joined her services as Lower Division Assistant in the establishment of the Gauhati High Court in the year 1991. Thereafter, she was promoted to the post of Upper Division Assistant in the year 1993 and later on to the post of Superintendent in 2012. 2013, the In 20213, the High Court of Manipur came to be established as it was separated from the Gauhati High Court. Separate Rules enforcing the Gauhati High Court Service Rules, 1967 were formed. The next promotion on her career ladder was from the post of Superintendent to the post of Assistant Registrar. In 2019, the opportunity emerged as one post of Assistant Registrar fell vacant.
As per Rules, 1967, the post was to be filled by way of
seniority-cummerit and the petitioner being seniormost amongst the
Superintendents, was entitled to the promotion . Thereafter, the High
Court of Manipur framed its own Rules, 2020. However, the DPC was held
on 9.4.2021 for promotion to the post of Assistant Registrar (six posts)
including one vacant post of the year 2019 and the remaining posts
which occurred in the month of August, 2020. As per the new rules last
four years ACRs were required to be considered and accordingly DPC
considered the ACRs from 2016 onwards till the date of DPC held on
9.4.2021. The DPC did not recommend the name of the petitioner and
promoted other persons – private respondents. Aggrieved, she filed the
present petition under Article 32 of the Constittution.
Sr. Advocate R. Bala Subramanian appearing for the petitioner argued that under the Rules, 1967 which were prevalent at the relevant time, the promotion to the post of Assistant Registrar was on the basis of the seniority-cum-merit and the petitioner being the seniormost in the cadre of Superintendent ought to have been promoted to the post of Assistant Registrar.
He further submitted that as per the DPC Guidelines, the year wise vacancy was required to be considered and therefore as the post of Assistant Registrar fell vacant on 1.2.2019, considering the vacancy of that year the DPC ought to have been held for promotion to the post of Assistant Registrar in the year 2019 itself and in any case as and when the DPC met, the Rules, 1967 ought to have been applied considering the fact that one post of Assistant Registrar fell vacant on 1.2.2019.
He averred that as under the Rules, 2020, more candidates become eligible which adversely affected the promotion of the petitioner. Crucially, he submitted that the bench that the ACR for the year 2016-17 having “Good” grading was not communicated to the petitioner and therefore the same ought not to have been considered by the DPC. He went on to apprise the bench the ACR for the year 2019-2020 having “Good” grading was communicated to the petitioner on 8.4.2021 granting 15 days’ time to the petitioner to make representation against the said ACR and before even completion of the 15 days’ time, the DPC met on 9.4.2021 itself and considered the ACR for the year 2019-2020 having “Good” grading and accordingly considered the case of the petitioner for promotion.
He further submitted that the DPC had materially erred in taking into consideration the ACR for the year 2016-17 (uncommunicated ACR) and also the ACR for the year 2019-2020 which was communicated to the petitioner only on 8.4.2021. It was submitted that if the ACRs for the years 2016-17 and 2019-20 both having “Good” grading are excluded, in that case for rest of the years, the petitioner was having grading “Very Good” and therefore the petitioner would have got the promotion accordingly.
Counsel for the opposite party, the promoted candidates, submitted that other candidates submitted their representations on the very next date i.e. 09.04.2021 and the petitioner did not submit any representation which she could have submitted like other employees/candidates.
He adeded gradings in the ACRs and information with regard to such
gradings was not provided or made available to the Hon’ble Judges
conducting the interviews and submitted that as such the viva voce of
the petitioner and all other eligible candidates were not influenced and
were independent of the gradings in the ACRs of the eligible
candidates.As regard to the uncommunicated ACR, the Court cited Rukhsana Shaheen Khan Vs. Union of India & Ors., 2018 Latest Caselaw 597 SC to state that the established position of law is that uncommunicated adverse ACRs may be even with “Good” entry which can be said to be adverse in the context of eligibility for promotion is not to be relied upon for consideration of promotion.
Therefore, uncommunicated ACR for the year 2016-17 having the grading “Good” could not have been relied upon for consideration for promotion, the Court observed.
Similarly so far as the ACR gradings for the year 2019-2020 is concerned, the Court noted that it was communicated only one day prior while the remedy against it runs for 15 days. The petitioner ought have to be given 15 days’ time to make the representation against the ACR grading for the year 2019-2020 but before the expiry of the said period, DPC meeting was held and decision on her promotion was taken.
"The submission on behalf of the High Court that the other candidates who were also communicated the ACRs for the year 20192020 on 08.04.2021 submitted their representations on 09.04.2021 and therefore the petitioner also could have submitted the representation on 09.04.2021 like other candidates is concerned, it is neither here nor there. The fact remains that the petitioner was having 15 days’ time from 08.04.2021 to make a representation. Therefore, either the DPC could have been postponed or the ACR for the year 2019-2020 ought not to have been considered and the same ought to have been treated as uncommunicated ACR."
The Court thus concluded that the grading for the year 2019-2020 also is to be excluded and/or be not relied upon for consideration for promotion as the same was communicated only one day prior and before the expiry of the remedial period.
In view of the above, the Court allowed the petition and set aside the DPC meeting proceedings.
CASE TITLE: R.K. Jibanlata Devi Vs. High Court of Manipur through its Registrar General and Ors. 2023 Latest Caselaw 130 SC
CASE DETAILS: WRIT PETITION (CIVIL) NO. 1209 OF 2021
CORAM: Justice M.R. Shah and Justice C.T. Ravikumar
CITATION: 2023 Latest Caselaw 130 SC
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