By Mr. V. Ajay Kumar, Member (J) The applicant, a Data Processing Assistant-B in the respondent  National Crime Records Bureau, filed the present O.A. aggrieved by the action of the respondents in not expunging the adverse remarks of Average and the consequential below benchmark grading of Average for the year 2005-06.

2. The respondents vide Office Memorandum dated 29.11.2011/07.12.2011, forwarded the ACR of the applicant for the year 2005-06 in which the grading given to the applicant is below benchmark grading of Average for next promotion/financial upgradation under MACP and directed him to make a representation, if any, within 15 days.

3. The applicant submitted a detailed representation on 20.12.2011. However, the respondents vide the impugned office memorandum dated 23.03.2012 rejected the representation of the applicant.

4. Heard Shri A.K. Behera for the applicant and Shri R.N. Singh, the learned counsel appearing for the respondents, and have gone through the pleadings on record.

5. Shri A.K. Behera, the learned counsel for the applicant, in support of the O.A. averments, inter alia, contended as under:

(i) The gradings awarded to the applicant in the ACRs from the year 1991-92 to 2007-08 are as under: 1992-92 : Very Good 1992-93 : Very Good 1993-94 : Very Good 1994-95 : Very Good 1995-96 : Good 1996-97 : Good 1997-98 : Good (1.4.97 to 25.8.97) 1997-98 : Very Good 1998-99 : Good 1999-2000 : Good 2000-01 : Good 2001-02 : Very Good 2002-03 : Outstanding 2003-04 : Good 2004-05 : Good 2005-06 : Average 2006-07 : Good 2007-08 : Good The applicant was given the grading of Good or above consistently in all the years from 1991-92 to 2007-08 except for the subject year, i.e. 2005-06, wherein the grading of Average was awarded to the applicant. No person can become a great performer or a non-performer all of a sudden. Simply, saying the performance of the applicant as average, against certain attributes in the ACR, without giving any reasons or without mentioning any specific instances, is against to the ACR Scheme itself. The Reporting Officer or Reviewing Officer even in their comments on the representation of the applicant failed to substantiate their action by giving any specific instances which prompted them to record the remarks of Average to the applicant. The respondents even in their counter to the O.A. also not given any specific instances.

(ii) The purpose and object of the ACRs is to give an opportunity to the employee to improve his performance by specifically bringing to his notice the various instances in which he did not perform the duty satisfactorily or the fields whereunder he requires to be improved himself. However, during the year 2005-2006, for which year, all of a sudden, the grading of the applicant was reduced to Average, no notice, no memo, no advisory note, no chargesheet etc. was ever communicated to the applicant. Hence, the contention of the respondents that the Reporting Officer in his comments on the representation of the applicant stated that the applicant was, time and again, advised verbally to amend, is totally false, untenable and without any supporting material.

(iii) The respondents communicated the below benchmark grading of Average for the year 2005-06 in December, 2011, i.e. after a lapse of more than 5 years. The ACRs, in view of the purpose and object for which the ACR system has been introduced, are required to be communicated to the concerned employee within a reasonable time, i.e. in any event before the commencement of the next ACR period. Then only that all the concerned, i.e. the employee, Reporting and Reviewing Officers would be able to remember and substantiate the events and various remarks made by them in the relevant ACR. If the communication of the ACR is delayed beyond a period of more than one year, the same amounts to violation of principles of natural justice, inasmuch as the said delay will prejudice the right of the employee.

(iv) The learned counsel placed reliance on the following judgments:

1. S. Ramachandra Raju Vs. State of Orissa, 1994 Supp(3) SCC 424.

2. Bishwanath Prasad Singh Vs. State of Bihar, (2001) 2 SCC 305.

3. U.P. Jal Nigam & Others Vs. Prabhat Chandra Jain & Others, (1996) 2 SCC 363.

4. State of U.P. Vs. Yamuna Shanker Misra, (1997) 4 SCC 7.

(v) The learned counsel also placed reliance on Paras 16 and 39 of the Swamys Compilation on Confidential Reports.

6. Per contra, Shri R.N. Singh, the learned counsel appearing for the respondents would contend as under:

(i) The applicant sought for upgradation of grading in the O.A. and the same is not permissible, since upgrading or downgrading of an ACR can only be done by the Competent Authorities, which are having full knowledge of the working of the concerned employee.

(ii) The Reporting Officer, in his comments to the representation of the applicant, categorically stated that the applicant failed to improve his performance, inspite of his repeated verbal advises. The applicant, who has not controverted the said fact in his pleadings, cannot contend that no notice or memo was ever issued to him to improve his performance with reference to any specific instance or attribute.

(iii) Prior to issuance of the DoP&T Office Memorandum dated 13.04.2010, there was no provision for communication of ACRs containing below benchmark gradings. Hence, non-communication of the subject ACR, i.e. for the year 2005-06, prior to 2011 cannot be a ground in interfering the same.

(iv) Since there was no allegation that any irregularity was committed by the respondents in decision making process, this Tribunal would not entertain the O.A.

(v) There is no cause of action to the O.A. as there was no violation of any statutory provision by the respondents, as alleged.

(vi) If a particular grading is awarded to an employee in a particular year basing on his performance in that year, it cannot be said that he should be given the same grading or a higher grading in the subsequent years.

(vii) The learned counsel placed reliance on the following judgments:

1. Ekta Shakti Foundation Vs. Govt. of NCT of Delhi, AIR 2006 SC 2609.

2. G.J. Fernandes Vs. State of Mysore and Others, AIR 1967 SC 1753.

3. Chief Commercial Manager, South Central Railway, Secunderabad and Others Vs. G. Ratnam & Others, (2007) 8 SCC 212.

7. In S. Ramachandra Raju (supra), it was held as under:  xxxx xxxx xxxx xxxx Therefore, writing the confidential reports objectively and constructively and communication thereof at the earliest would pave way for amends by erring subordinate officer or to improve the efficiency in service. At the same time, the subordinate-employee/officer should dedicate to do hard work and duty; assiduity in the discharge of the duty, honesty with integrity in performance thereof which alone would earn his usefulness in retention of his service. Both would contribute to improve excellence in service.

8. In Bishwanath Prasad Singh (supra), it was held as under:  xxxx xxxx xxxx xxxx The entry in the confidential rolls should not be a reflection of personal whims, fancies or prejudices, likes or dislikes of a superior. The entry must reflect the result of an objective assessment coupled with an effort at guiding the judicial officers to secure an improvement in his performance where need be; to admonish him with the object of removing for future, the shortcoming found; and expressing an appreciation with an idea of toning up and maintaining the immutable qualities by affectionately patting on the back of meritorious and deserving. An entry consisting of a few words, or a sentence or two, is supposed to reflect the sum total of the impressions formulated by the inspecting Judge who had the opportunity of forming those impressions in his mind by having an opportunity of watching the judicial officer round the period under review. In the very nature of things, the process is complex and the formulation of impressions is a result of multiple factors simultaneously playing in the mind. The perceptions may differ. In the very nature of things there is a difficulty nearing an impossibility in subjecting the entries in confidential rolls to judicial review. Entries either way have serious implications on the service career. Hence the need for fairness, justness and objectivity in performing the inspections and making the entries in the confidential rolls.

9. In U.P. Jal Nigam (supra), the appellants plea was that downgrading entries in confidential reports cannot be termed as adverse entries so as to obligate the Nigam to communicate the same to the employee and attract a representation. While observing as under: The Nigam has rules, whereunder an adverse entry is required to be communicated to the employee concerned, but not down grading of an entry. It has been urged on behalf of the Nigam that when the nature of the entry does not reflect any adverseness that is not required to be communicated. As we view the extreme illustration given by the High Court may reflect and 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 confidentials in the situation is to record reasons for such down grading 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 perilously be adverse and to say that an adverse entry should always be qualitatively damaging may not be true. it was held that downgraded ACRs are to be communicated.

10. In Yamuna Shanker Misra (supra), it was held as under: It would, thus, be clear that the object of writing the confidential reports and making entries in the character rolls is to give an opportunity to a public servant to improve excellence. Article 51-A(j) enjoins upon every citizen the primary duty to constantly endeavour to prove excellence, individually and collectively, as a member of the group. Given an opportunity, the individual strives to improve excellence and thereby efficiency of administration would be augmented. The officer entrusted with the duty to write confidential reports, has a public responsibility and trust to write the confidential reports objectively, fairly and dispassionately while giving, as accurately as possible, the statement of facts on an overall assessment of the performance of the subordinate officer. It should be founded upon the facts or circumstances. Though sometimes, it may not be part of record, but the conduct, reputation and character acquire public knowledge or notoriety and may be within his knowledge. Before forming an opinion to be adverse, the reporting officers writing confidentials should share the information which is not a part of the record with the officer concerned, have the information confronted by the officer and then make it part of the record. This amounts to an opportunity given to the erring/corrupt officer to correct the errors of the judgment, conduct, behaviour, integrity or conduct/corrupt proclivity. If, despite given giving such an opportunity, the officer fails to perform the duty, correct his conduct or improve himself necessarily, the same may be recorded in the confidential reports and a copy thereof supplied to the affected officer so that he will have an opportunity to know the remarks made against him. If he feels aggrieved, it would be open to him to have it corrected by appropriate representation to the higher authorities or any appropriate judicial forum for redressal. Thereby, honesty, integrity, good conduct and efficiency get improved in the performance of public duties and standards of excellence in services constantly rises to higher levels and it becomes successful tool to manage the services with officers of integrity, honesty, efficiency and devotion.

11. In Ekta Shakti Foundation (supra), the Honble Apex Court, while dealing with the legality of certain terms in inviting offers for implementation of the scheme called the "Detailed Scheme for Capacity Building of Self Help Groups to Prepare and Supply Supplementary Nutrition under the Integrated Child Development Service (in short the 'ICDS') Programme held that: In such matters the power of judicial enquiry of the Courts is confined to the question whether the decision taken by the Government is against any statutory provisions or is violative of the fundamental rights or constitutional provisions and the Court cannot act as an Appellate Authority.

12. In G.J. Fernandes (supra), the Honble Apex Court, while again dealing with the issue of tenders for construction of the right bank masonry dam called Hidkal Dam by the PWD held that: The instructions contained in the PWD Code are mere administrative instructions and are not statutory rules. Therefore, even if there has been any reach of such executive instructions that does not confer any right on the appellant to apply to the court.

13. In Chief Commercial Manager, South Central Railway (supra), while dealing with the penalty orders of a Railway employee and after considering the instructions in Indian Railways Vigilance Manual, the Apex Court held that: Even if, there has been any breach of such executive instructions that does not confer any right on any Member of the public to ask for a writ against the Government.

14. The objects of the Annual Confidential Reports/Annual Performance Assessment Report mechanism as per Swamys Compilation on Confidential Reports (incorporating orders received upto October, 2012) are as under: 1. Object

1. The performance of every Government servant is assessed annually through the Assessment Report that is written by his Superior Officer. Since the Assessment Report guides him about his defects and shortcomings, which decides his future career advancement, it is supposed to be a very important document in his career.

2. It is in the interest of every Government servant that he should know how well or otherwise, he is performing the job assigned to him. He can plan his career development in a systematic manner only when he comes to know of his defects and takes remedial measures.

3. The ultimate goal of writing of APAR on the performance of a Government servant is to optimize the achievement of Government policies and programmes. The main focus of the Reporting Officer should be developmental, rather than judgemental.

4. Thus the system of APAR has two principal objectives. First and foremost is to improve the performance of the subordinate in his present job. The second one is to assess his potentialities and provide him appropriate feedback and guidance for correcting his deficiencies and improve his performance.

5. The APAR provides the basic and vital inputs for assessing the performance of an officer and his advancement in his career as also to serve the data for judging his comparative merits when questions arise of confirmation, promotion, selection grade, crossing efficiency bar, continuance in service beyond certain age or completion of certain years service. Government have accepted the principle that these factors should be based solely on the assessment of the confidential dossiers.

15. Before, arriving to any conclusion, it is relevant to note the following judgments also.

16. In M.A. Rajshekhar Vs. State of Karnataka, (1996) 19 SCC 369, it was held that : It must be pointed out with reference to the specific instance in which he did not perform that duty satisfactorily, so that he would have an opportunity to correct himself.

17. In S.T. Ramesh Vs. State of Karnataka & Anr., (2007) 9 SCC 436, it was held that: The Court has to consider whether the adverse remarks were sufficient in themselves to merit the overall assessment of Average when appellant had always been awarded Excellent remarks in his confidential reports both before and after the adverse remarks.

18. In Dev Dutt Vs. Union of India, 2008 (8) SCC 725 and in Abhijit Ghosh Dastidar Vs. Union of India, 2009 (16) SCC 146, the Honble Apex Court held that Non-communication of not only adverse remarks but also below benchmark remarks, such as 'good' would be arbitrary and as such violative of Article 14 of the Constitution of India and warrant exclusion of such ACRs from consideration.

19. However, the Honble Apex Court expressed contrary view in K.M. Mishra Vs. Central Bank of India, (2008) 9 SCC 120 and Satya Narain Shukla Vs. Union of India & Others, (2006) 9 SCC 69, i.e. to the effect that non-communication of below benchmark ACRs which shows the decline from Very Good to Good etc. does not warrant exclusion of the said ACRs from consideration.

20. The Honble Apex Court in Union of India & Anr. Vs. Major Bahadur Singh, 2006 (1) SCC 368, expressed different view from that of U.P. Jal Nigam (supra) and observed that said decision applies to the employees of U.P. Jal Nigam only.

21. Noticing the contrary view in U.P. Jal Nigam and Major Bahadur Singh, the case of Sukhdev Singh Vs. Union of India & Others, 2013 (9) SCC 566 was referred to a three Judges Bench. While answering the said reference, the three Judges Bench of the Honble Apex Court in Sukhdev Singhs case considered all the aforesaid cases, and held as under: 8. In our opinion, the view taken in Dev Dutt that every entry in ACR of a public servant must be communicated to him/her within a reasonable period is legally sound and helps in achieving threefold objectives. First, the communication of every entry in the ACR to a public servant helps him/her to work harder and achieve more that helps him in improving his work and give better results. Second and equally important, on being made aware of the entry in the ACR, the public servant may feel dissatisfied with the same. Communication of the entry enables him/her to make representation for upgradation of the remarks entered in the ACR. Third, communication of every entry in the ACR brings transparency in recording the remarks relating to a public servant and the system becomes more conforming to the principles of natural justice. We, accordingly, hold that every entry in ACR - poor, fair, average, good or very good - must be communicated to him/her within a reasonable period.

9. The decisions of this Court in Satya Narain Shukla vs. Union of India and others [(2006) 9 SCC 69] and K.M. Mishra vs. Central Bank of India and others [(2008) 9 SCC 120] and the other decisions of this Court taking a contrary view are declared to be not laying down a good law.

22. In view of the conspectus of the above case law, it is clear and unambiguous that every entry in an ACR of a public servant whether he is in Civil, Judicial or Police or any other service (other than Armed Forces), whether it is an adverse remark or a below benchmark remark, i.e. poor, fair, average, good or very good, must be communicated to a public servant by recording reasons for such remark, within a reasonable period. Any non-compliance of the same amounts to arbitrariness and violative of Article 14 of the Constitution of India, besides against the purpose and object of the ACR Scheme itself.

23. In the present case, the respondents not only failed to show that before recording the remarks of Average in the ACR of the applicant that they have either warned him or put him on notice with reference to any specific instance or attribute to enable him to improve himself, but also, admittedly, failed to give reasons of any sort for recording the said Average remarks. Further, the ACR of the year 2005-06 was communicated to the applicant after a lapse of 5 years, i.e. in the year 2011. All these facts clearly establish that the action of the respondents is in clear violation of law as enunciated by the Honble Apex Court, as observed above.

24. In the circumstances and for the reasons mentioned above, the impugned orders are quashed, and the respondents are directed not to consider the ACR for the year 2005-2006 for any purpose including for promotion/MACP etc. of the applicant. The O.A. is allowed, accordingly. No order as to costs. (P.K. BASU) (V. AJAY KUMAR) Member (A) Member (J) /Jyoti/