Supreme Court of India
DALJIT SINGH GREWALversusSTATE OF PUNJAB & ORS.
- Citation
- 2015 INSC 598
- Decided
- 21 August 2015
- Disposal
- Appeal(s) allowed
- Bench
- V GOPALA GOWDA
Holding
The downgrading of the appellant’s ACR by respondent No.4 was without authority and malafide, making the denial of promotion illegal; the order denying promotion is set aside.
Summary
Daljit Singh Grewal, a District Commander in the Punjab Home Guards, sought promotion to Battalion Commander but was denied due to adverse entries in his Annual Confidential Reports (ACR) that downgraded his performance. He filed multiple representations, a civil suit (which was decreed in his favour) and a writ petition, but the Department failed to implement the decree and the High Court dismissed his petition and review. The Supreme Court held that the downgrading of the ACR by respondent No.4 was done without authority, was malafide, and not communicated to the appellant, rendering the denial of promotion illegal. The Court found that the appellant satisfied the seniority‑cum‑merit and benchmark mark requirements for promotion. Consequently, the order denying promotion was set aside and the respondents were directed to reconsider his claim and grant the promotional post notionally for pension benefits. The appeal was allowed.
Issues considered
- The validity of using adverse ACR entries, not communicated to the officer, to deny promotion.
- Whether respondent No.4 had authority to downgrade the appellant's ACR.
- Whether the benchmark system and mark requirements for promotion were correctly applied.
- Whether the High Court erred in dismissing the writ petition and review application.
- Whether the decree of the civil suit should be implemented for promotion.
Legislation cited
- Punjab Home Guard Class-II Rules, 1988s. Rule 8(1)(2)(i), s. Rule 8(2)
- Right to Information Act, 2005
Subjects
Annual Confidential ReportPromotionSeniority-cum-MeritMalafideService LawPunjab Home GuardsBenchmark SystemAdverse EntriesNatural Justice
Judgment
[2015] 11S.C.R.533
DALJIT SINGH GREWAL A
V.
STATE OF PUNJAB & ORS.
(Civil Appeal No.6532 of2015)
B
AUGUST21, 2015
[V.GOPALA GOWDA ANDS.A. BOBDE, JJ.]
Service Law - Annual Confidential Reports (ACR) -
Adverse entry in - Denial of promtion due to the adverse c
entires - Held: In view of the facts of the case downgrading
the performance of the appellant-official in his ACR for the
relevant periods by respondent No. 4 was not valid as the
same was done without any authority or competence and was
also tainted with malafides - Therefore the order denying D
promotional benefits by the rspondents-Departmenet from
the year 2001-2002 is liable to be set aside- Respondents
are directed to reconsider the claim of the appellant so as to
give him promotional post notionally to get pensionary
benefits since he had already been prematurely retired. E
Allowing the appeal, the Court
HELD: 1. According to the Punjab Home Guard
Class- II Rules, 1988, the appointment to the promotional F
post is to be made on seniority-cum-merit basis. As per
the ACRs placed on record, the appellant has fulfilled
the aforesaid requirement of seniority-cum-merit by
securing 14 marks, as per the Instructions by Letter No.
4/6/2000-3 PPI/ 13720 dated 6.9.2001, in relation to all G
aspects entered in the ACR. [Para 39] [553-8-D]
2. The overall grading of the ACR for the period
2000-2001 was based upon the observations made by
H
533
534 SUPREME COURT REPORTS [2015] 11 S.C.R.
A the Reporting Authority, Reviewing Authority and final
Accepting Authority. As per the entries made by
respondent No. 4, he had agreed to the overall grading
i.e. "He is a very good and responsible officer" as given
by the Accepting Authority. In such a case, he could not
B have downgraded the overall grading in the ACR by
using the words "an average officer". Further, if the
comments made on 20.05.2004 by respondent No. 4 on
the ACR for the year 2000-2001 are being sought to justify.
the stand of denial of promotion to the appellant to the
C post in question, then the clarification needs to take
effect from that date, i.e 20.05.2004. In such a case, the
appellant was to be assigned 3 marks as per the
instructions for the year 2003, when he was ignored for
the promotion for the first time. [Para 37] [551-F-H; 552-
0
A-B]
3. The representations against the adverse remarks
for the period 1999-2000 were rejected by respondent
No. 4. The appellant had challenged the same by filing
E Civil Suit, wherein respondent No. 4 was impleaded. The
Civil Suit was decreed in favour of the appellant. The said
judgment and decree passed in favour of the appellant
has not been implemented by respondent Nos. 4 and 5,
despite having attained finality, which clearly reflects the
F fact that respondent No.4 was not fair in considering him
for promotion to the post of Battalion Commander as
provided under Rule 8(2) of the Rules.[Para 39]
[552-G-H; 553-A-B]
G 4. As per the record, the appellant was given grade
'A+' for the year 2001-2002, but only 1 mark was assigned,
whereas according to the executive Instructions, the
grade 'A+' is to be assigned 4 marks. If 4 marks had been
assigned for the ACR of the appellant, then he would
H have scored 12 marks at the time of consideration for
DALJIT SINGH GREWAL v. STATE OF PUNJAB & ORS. 535
promotion in the year 2003, whereas admittedly, the A
appellant was required to achieve only 10 marks in order
to be promoted to the post of Battallion Commander.
Hence, if the calculation of marks made by the
respondents on the various aspects in the ACR of the
appellant is believed to be true, then also he has achieved B
the required benchmark. The action of the respondent
No. 4 in deliberately ignoring the claim of the appellant
is vitiated in law as the same is contrary to the Rules
and records of ACR for the relevant period and
Instructions issued by the ·state Government laying C
down certain guiding principles. [Para 40] [554-B-E]
5. A perusal of the copy of the ACR for the period
2003-2004 reflects a true picture of the injustice that has
been perpetrated against the appellant. The ACR has o
been written by respondent No. 4 who was the Reporting
Authority as the Divisional Commandant. The very same
officer was also the Reviewing Authority as Deputy
Commandant General. Further, the same officer also
happened to be the Final Accepting Authority as the E
Commandant General. The fact that in the said year also
the performance of the appellant had been graded as
'average' clearly reveals the malafide intention of
respondent Nos.1 ~4 in deliberately denying the
promotion to the appellant to the post in question. If F
these illegal downgrading entries in the ACR for the
relevant period are ignored, then the appellant would
attain 14 marks whereas as per the Instructions dated
06.09.2001, 12 marks were required for promotion to the
· post as per the benchmark fixed. [Para 38] [552-B-F] G
6. In view of the facts of the case, the downgrading
of the performance of the appellant in his ACR for the
relevant period by respondent No. 4 was not valid as
the same was done without any authority and H
536 SUPREME COURT REPORTS [2015] 11 S.C.R.
A competence. The adverse entries in the ACR have
deprived the appellant of his right of promotion to the
post in question and therefore, the said adverse entries
in the ACRs against the appellant are not legal and valid.
[Para 37) [549-E-G]
B
7. The action of respondent No. 4 in dElnying the
promotional benefit to the appellant is tainted with
malafides. In the writ petition proceedings before the High
Court, it was the officer junior to the appellant, who was
C promoted to the post in question, had filed the reply on
behalf of all the respondents. The non-filing of written
statement by respondent No. 4 traversing the allegations
of malafide against him proves the malafide intention on
part of respondent No. 4. [Para 39] [553-D-F]
D
8. The impugned judgment and order passed by
the High Court in both the Civil Writ Petiti~n and the
Review Application and also the order of denying the
promotional benefit by the respondents-Department to
E the post of the Battalion Commander from the year 2001-
2002 is set aside. Respondent Nos. 1 to 5 are directed to
reconsider the claim of the appellant so that the appellant
could get higher post of Battalion C~mmander notionally
to get pensionary benefits as he has been prematurely
F retired from service on 31.7.2007.[Para 42) [554-G-H;
555-A-C]
Sukhdev Singh v. Union of India 2013 (9) SCC
566: 2013 (5) SCR 1004- relied on.
G BalbirSingh Bedi_v. State of Punjab & Ors. (2013)
11 SCC 746: 2013 (3) SCR 376; Gurdial Singh
Fiji v. State of Punjab AIR 1979 SC 1622; Dev
Dutt v. Union of India & Ors. (2008) 8 SCC
725: 2008 (8) SCR 174 - referred to.
H
DALJIT SINGH GREWAL v. STATE OF PUNJAB & ORS. 537
Case Law Reference A
2013 (3) SCR 376 referred to. Para 19
1979 SC 1622 referred to. Para 27
2008 (8) SCR 174 referred to. Para 33 B
2013 (5) SCR 1004 26 relied on. Para 39
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
6532 of 2015 c
From the Judgment and Order dated 27.08.2013 of the
High Court of Punjab and Haryana at Chandigarh in Review
Application No. 208 of 2013 in CWP No. 5643 of 2004
Rakesh Kumar Khanna, Rajesh Punj, Debasis Misra, D
Manju Jetley for the Appellant.
Nikhil Nayyar, AAG, Kuldip Singh for the Respondents.
The Judgment of the Court was delivered by E
V. GOPALA GOWDA, J. 1. Leave granted.
2. This appeal is directed against the impugned
judgment and order dated 27.08.2013 passed by the High
Court of Punjab & Haryana at Chandigarh in Review F
Application No. 208 of 2013 (O&M) in CilJil Writ Petition No.
5643 of 2004 whereby the High Court did not find any merit in
the application and dismissed the same.
3.The brief facts of the case are mentioned below:- G
The appellant joined the Punjab Home Guards
Department as District Commander in the year 1993 after
being selected through Punjab Public;: Service Commission
under the Punjab Home Guard Class-II Rules, 1988. The work H
538 SUPREME COURT REPORTS [2015] 11 S.C.R.
A of the appellant was appreciated by the ADGP, Railways when
a big tragedy on the railway tracks was averted as a result of
his efforts. His work and conduct was considered as excellent.
The dispute in the instant case arose when he received a letter
dated 28.06.2000, wherein the Annual Confidential Report
B (ACR) for the period 1.07.1999 to 31.03.2000 rated his
performance as 'average'. The D.G.P-cum-Commandant
General had written the following remarks:
"An mediocre officer, whose performance was
C barely satisfactory. His own officers intrigue and
directly make unfounded allegations. This work
environment, he has not been able to change."
4. The said assessment of his performance by the Deputy
D Commandant General-cum-Deputy Director, Civil Defence and
the D.G.P-cum- Commandant General, Home Guards &
Director Civil Defence led the appellant to place a
representation dated 07.07.2000 before the UGP-cum-
Commandant General, Home Guards and Director Civil
E Defence, Punjab- respondent No.5, requesting the supply of
documents on the basis of which his conduct and diligence
was graded as 'average'. But no satisfactory response was
received by the appellant despite having been made reminder
representations dated 18.08.2000 and 25.08.2000 for supply
F of the said documents. On 29.12.2000, Instructions were
issued by the Department of Personnel, State Government,
Punjab whereby a 'benchmark system' was introduced for
promotion to Group-A and Group-B posts.
G 5. On 15.03.2001, the appellant submitted a detailed
representation to the Secretary, Personnel, Punjab, Civil
Secretariat-respondent No.3 herein, requesting him to re-
consider the said Instructions on the ground that the same were
violative of principles of natural justice. He also stated in the
H
DALJIT SINGH GREWAL v. STATE OF PUNJAB & ORS. 539
[V. GOPALAGOWDA, J.]
representation thatthe recording of adverse entries in theACR A
must be conveyed to the concerned officers so as to enable
them to improve their work accordingly. On 07 .05.2001, the
appellant received a letter from the Under Secretary,
Department of Home Affairs and Justice, informing him that
his representations dated 18.08.2000 and 25.08.2000 to the B
Government had been considered and rejected.
6. The appellant again made a representation on
31.05.2001 to the then Principal Secretary, Department of
Home and Justice, requesting that the adverse remarks made C
in his ACR for the year 1999-2000 be expunged so that he
could be promoted to the post of Battalion Commander.
7. On 30.06.2001, the appellant became eligible for
promotion to the post of Battalion Commander after completion o
of 8 years of service as per Punjab Home Guard Class-I Rules,
1988. Rule 8(2) of the Rules provides that the District
Commanders having 8 years of experience are entitled to
promotion to the post of Battalion Commander on the basis of
seniority-cum-merit and that no person could claim promotion E
on the basis of seniority alone:
8. Ultimately, having received no satisfactory response
from the respondent Nos. 3 to 5 despite making several
representations, the appellant filed Civil Suit No. 70 of 2001 F
before the Civil Judge (Sr. Div.), challenging the adverse entries
made in hisACR for the year 1999-2000.
9. Meanwhile, the representation of the appellant was
rejected by respondent No. 4 by way of a non-speaking order G
on 08.08.2001.
10. By letter No.4/6/2000-3PPl/13720 dated 06.09.2001,
the government modified its earlier Instructions dated
29.12.2000, whereby the benchmark system was introduced H
540 SUPREME COURT REPORTS [2015] 11 S.C.R.
A for promotion to the Group-A and Group-8 posts which was
approved and published by the Government of Punjab on
18.12.2001. A conscious poficy decision was taken to set up
Departmental Promotion Committees for considering cases
of eligible officers for promotion to Class-I and Class-II (Group
B '/\and Group 'B') posts, which inter alia reads thus:-
"...... a .. .
...... b ...
c NO. NORMAL ZONE
OF ZONB FOR
VAC."f\ CONS ID
NCIE ERATIO
s N
SC/ST
D 1 5 5
2 8 10
3 10 15
4 12 20
Twice 5
the times
E number number
of of
vacanci vacanc
es plus ies
4
F
xxx xxx xxx
(c) It has been decided to retain the numbering system
of evaluation of ACRs as contained in the instructions
G dated 29.12.2000 which is as under:-
Outstanding 4 MARKS
Very good 3 MARKS
Good 2 MARKS
H Average 1 MARK
DALJIT SINGH GREWAL v. STATE OF PUNJAB & ORS. 541
[V. GOPALAGOWDA, J.]
ACRs for the last 5 years are to be taken into A
consideration for promotion. The criteria for promotions
will be as under:-
1 ....
B
2. For promotion to posts falling in Group 'A' other than
Head of Department, the .minimum bench mark will be
Very Good with at. least 12 marks. Amongst those
meeting this criteria, there would be supersession.
3. In the case of promotion to posts falling in Group 'B' C
the minimum bench mark will be "Good" and there would
be no supersession i.e. promotions would be made
strictly on seniority-cum-merit.
xxx xxx XXX .. " D
11. By the judgment and order dated 15.03.2002, the
Civil Judge, (Sr. Div.}, Patiala in Civil Suit No. 70 of 2001
decreed the suit in favour of the appellant. The adverse remarks
recorded against the appellant in the ACR for the period E
01.04.1999 to 31.03.2000 were expunged and all
consequential benefits were granted to the appellant.
12. Since no appeal was filed by the respondents against
the said judgment and decree of the Civil Judge (Sr. Divn.), F
the appellant requested the respondents vide representation
dated 08.05.2002 to consider him for promotion to the post of
Battalion Commander. Thereafter, despite having submitted
representations dated 10.05.2002 and 20.06.2002 to the
respondent No. 4, no action was taken to implement the G
decree passed in favour of the appellant.
13. In the meanwhile, the Division Bench of High Court
passed an order on 14.01.2003 in CWP No. 4491 of 2001
and CWP No. 11011 of 2001 (filed by some other petitioners, H
542 SUPREME COURT REPORTS (2015] 11 S.C.R.
A who had also challenged Instructions dated 29.12.2000)
issuing direction to the State Government for considering the
case of petitioners therein, by ignoring the Instructions dated
29.12.2000.
s 14. Two more representations were made by the
appellant on 31.03.2003 and 09.04.2003 to respondent No.
4, but no action was taken.
15. Once again, having found that his performance was
c shown as 'average' in theACR for the period 01.04.2001 to
31.03.2002 which was graded by the respondent No.4, the
appellant submitted another representation on 16.04.2003 for
upgrading hisACR forthe period 1999-2000 and 2001-2002
as his controlling officer i.e. Division Commander has awarded
o him "A" Grade and Review Authority i.e. Deputy Commandant
General also awarded him "+A" which entries were accepted
by the final authority i.e. Commandant General, Home Guard-
respondent No. 5. He also mentioned in the representation
that he was shocked to find that hisACR forthe period 2001-
E 2002 was downgraded by respondent No. 4 without assigning
any reason or affording an opportunity of being heard. As per
the departmental procedure, Rules and Instructions, the then
Principal Secretary, Home who has not seen the work and
conduct of the appellant, could not have downgraded his
F performance by making an adverse entry in hisACR. However,
no action was takeri on this representation made by him.
16. As per the Instructions dated 06.09.2001, at least 12
marks were required for promotion ~o the post of Battalion
G Commander. The appellant was not considered for promotion
even after having a decree passed in his favour by the Civil
Court which was deliberately not placed before the
Departmental Promotion Committee (hereinafter "the DPC")
for its consideration. Due to the adverse remarks in theACR
H
DALJIT SINGH GREWAL v. STATE OF PUNJAB & ORS. 543
[V. GOPALAGOWDA, J.]
for the year 2001-2002, the.appellant fell short of this A
benchmark.
17. The appellant again made representations dated
10.09.2003 and 15.09.2003 to the respondent No. 4 for
implementing the judgment and decree passed by the Civil B
Judge (Sr. Div.) in his favour and requested them to promote
him to the post of Battalion Commander. He also got a legal
notice issued to the respondents on 06.10.2003. The
respondents deliberately ignored the request of the appellant
by placing reliance on the Instructions referred to supra and C
the non-upgraded ACRs for the year 1999-2000, 2000-2001
and 2001-2002, though the suit was decreed in his favour.
18. On 16.02.2004, the appellant issued a legal notice
to the respondent Nos. 4 and 5 for upgrading the ACR for the o
period 2001-2002 from 'Average' to 'Excellent'.
19. Asimilar issue arose for consideration of promotion
and quashing of Instructions regarding the benchmark method
introduced by the State Government, Department of Personnel E
in the case Qf Ba/bir Singh Bedi v. State of Punjab & Ors/,
wherein this Court upheld the validity of the executive
Instructions dated 29.12.2000 and 06.09.2001, holding that
these Instructions are nothing but a codification of directions
issued by this Court regarding promotions and the criteria of F
seniority-cum-merit in a catena cases.
20.The appellant made a complaint on 11.03.2004 to
the respondent no.4 seeking that action be taken against the
persons who were tampering .with the ACR's to harm the G .
service career of the appellant.
21. Ultimately, the appellant filed CWP No. 5643 of2004
before the High Court challenging the legality and validity of
1 (2013) 11 sec 746 H
544 SUPREME COURT REPORTS [2015] 11 S.C.R.
A the Instructions and orders dated 02.05.2003 and 30.01.2004.
The said petition was dismissed by the Division Bench of the
High Court on 02.04.2004.
22. Meanwhile, the appellant was supplied certain
B documents under the RTI Act which had material effect on the
merits of his case. The appellant filed SLP (C) No. 14964 of
2004 against the order of the High Court dated 02.04.2004.
This Court granted leave in the said SLP and the same was
converted into Civil Appeal No. 5192 of2004 and was directed
C to be heard along with the case of Ba/bir Singh Bedi referred
to supra. The case was dismissed, but the appellant was
granted liberty by this Court to file a Review Petition before
the High Court.
o 23. The appellant approached the High Court after being
granted liberty by this Court in the above referred case and a
Review Application No. 208 of 2013 was filed for recall of order
dated 02.04.2004. The High Court having found no merit in
the Review Application dismissed the same vide its order
E dated 27.08.2013. On the issue of the ·performance of the
appellant being graded as 'average', the High Court observed
that though it was not clear as to whether the adverse entries
in the ACR for the period of 01.04.2001 to 31.03.2002 were
conveyed to the appellant, yet it was clear from his
F representations that the contents of the reports were in his
knowledge and he had specifically represented against its
downgrading. The High Court further held that the appellant
could not contend that the adverse AC R's were made behind
his back. Hence, the present appeal is filed questioning the
G correctness of the action of the respondents in not giving
promotion to the appellant to the post of Battalion Commander
though he was entitled for the same and also challenged the
judgment and orders passed in writ petition and also review
H petition.
DALJIT SINGH GREWAL v. STATE OF PUNJAB & ORS. 545
[V. GOPALAGOWDA, J.]
24. Mr. Rakesh Kumar Khanna, learned senior counsel A
appearing on behalf of the appellant has contended that the
High Court erred in not complying with the observations made
by this Court in Civil Appeal No. 5192 of 2004, wherein this
Court directed that the additional documents obtained by the
appellant under the RTIActwereto be considered by the High B
Court. Thus, the appellant withdrew the Civil Appeal No.5192
· of 2004 and filed a Review Application before the High Court
in order to produce the documents obtained by him so that the
same could be considered by the High Court and pass
appropriate orders. C
25. It is also contended by the learned senior counsel
that the High Court failed to consider the representation dated
16.04.2003 submitted by the appellant to the respondent No.
4, wherein he had requested for the implementation of the D
judgment and decree dated 15.03.2002 passed in the Civil -
Suit No. 70 of 2001.
26. It is further contended by the learned senior counsel
on behalf of the appellant that the High Court should have taken E
into consideration the latest judgment of this Court rendered
in the case of Sukhdev Singh v. Union of lndia 2 wherein it
was held that all the AC Rs whether poor, fair, average, good
or very good, must be apprised to the concerned employee/
officer within the stipulated time so that he/ she can take F
suitable action if he/she is aggrieved by the same. While on
the one hand, the High Court presumed that the appellant had
knowledge of the downgrading in hisACR, at the same time it
was also observed that it was not clear whether the
downgrading was conveyed to the appellant. G
27. It is further contended by the learned senior counsel
appearing on behalf of the appellant that the High Court should
' 2013 (9) sec 566 H
546 SUPREME COURT REPORTS [2015] 11 S.C.R.
A have considered the law laid down in the case of Gurdial Singh
Fiji 11. State of Punjab3, wherein this Court has specifically
held that the adverse remarks made in the ACR cannot be
acted upon by the Authority to deny promotion to a post unless
they have been communicated to the concerned person.
B
28. It is further contended by the learned senior counsel
that the respondent No. 4 could not have downgraded hisACR
and that too without conveying the same to him, as he had not
personally seen the work of the appellant. There should have
C been some reason for the respondents to make adverse
entries in hisACR's forthe relevant periods by changing the
original entries made by the Reporting Authority-respondent
No. 5. The adverse entries made in theACR's of the appellant
for the relevant periods were not communicated to him. If.there
D were any adverse entri~s in theACR's, the same should have
been communicated to the appellant to enable him to improve
his shortcomings or submit a representation against the
adverse entries. It was further contended by the learned senior
counsel that the favourable entries recorded in theACR's for
E the relevant periods were deliberately not produced before
the Selection Committee or DPC by the respondents so that
the appellant would not be considered for promotion and
promoted to the promotional post, which aspect of the matter
F should have been taken into consideration by the High Court
while passing the impugned judgment and order in the writ
petition and also in the order passed in the review application.
29. On the other hand, Mr. Nikhil Nayyar, the learned
Additional Advocate General appearing on behalf of the
G respondent Nos. 1 to 5, has sought to justify the impugned
judgment and order contending that the same is legal and
justifiable on facts and also in law. Therefore, the High Court
H 3
AIR 1979 SC 1622
DALJIT SINGH GREWAL v. STATE OF PUNJAB & ORS. 547
[V. GOPALAGOWDA, J.]
has rightly dismissed the Writ Petition and Review Application A
of the appellant. Hence, the same does not warrant interference
by this Court.
30. It is further contended by the learned Additional
Advocate General that the DPC considered the AC Rs of the B
past five years of the appellant and on the basis of final marks
obtained by him for the relevant ACRs, his claim was not
considered by the DPC for promotion as he failed to meet the
benchmark criteria laid down as per Instructions dated
29.12.2000 and 06.09.2001 issued by the respondent No. 3. C
Further, even the Head of the Department did not issue the
requisite integrity certificate in favour of the appellant.
31. It was further contended by the learned Additional
Advocate General that in an earlier round of litigation before o
this Court in a similar matter i.e. Balbir Singh Bedi (supra),
this Court upheld the validity of benchmark Instructions dated
29.12.2000 and 06.09.2001 issued for consideration of
eligible officers for promotion to.the posts of Class I and II viz.
Group A and Group B arid therefore, the same cannot be E
ignored. Thus, the appellant cannot be promoted to the post
of Battalion Commander.
32. Further, it was contended by the learned Additional
Advocate General that there were no adverse remarks in the F
AC Rs of the appellant for the year 2000-2001 and 2001-2002,
which were required to be apprised to him.and he was also
aware of his adverse ACRs for the years 1999-2000.
Therefore, it was rightly held by the High Court that the contents
of those reports were within his knowledge. Therefore, there G
is no error of law committed by the High Court.
33. It is further contended by the learned Additional
Advocate General that it was· not right on the part of the
appellant to request the respondent No. 4 to upgrade his AC Rs H
548 SUPREME COURT REPORTS [2015] 11 S.C.R.
A and consequently to promote him to the promotional post
retrospectively, which is impermissible in law. In support of his
submission he placed reliance on the case of Dev Dutt v.
Union oflndia & Ors. 4 , wherein this Court had directed the
appellant therein to make a representation before the
B concerned authorities to consider his claim for promotion
retrospectively.
34. After hearing the learned counsel for both the parties
and corisidering the facts and rival legal contentions urged by
C them including the written submissions submitted by the learned
counsel for the parties and on perusal of record, we pass the
following order in this appeal on merits by assigning the reasons
as mentioned herein below.
o 35. The promotion of the appellant to the post of Battalion
Commander from the post of District Commandant is governed
by Rule 8( 1)(2)(i) of the Rules. The aforesaid rule contemplates
that 75% of the promotional posts of the Battalion Commander
be filled up by promotion amongst the Battalion second in
E command. The legal requirement for promotion to the post of
Battalion Commander is that the claimant should have been
working as a District Commandant for a period of 8 years and
the appointment to the said promotional post shall be made
by the Competent Authority on seniority-cum-merit basis. No
F person shall be entitled to claim promotion on the basis of
seniority alone. As per the Punjab State Government
Instructions issu"ed on 06.09.2001, certain guidelines have
been laid down for DPC to consider the cases of promotion to
the post of Class-I and Class-II namely, group·~ and 'B' posts.
G As per the said guidelines, an eligible candidate is promoted
on the basis of the seniority:.cum-merit criteria, where merit is
determined on the basis of benchmark awarded to the various
H • (200BJ a sec 725
DALJIT SINGH GREWAL v. STATE OF PUNJAB & ORS. 549
[V. GOPALAGOWDA, J.]
aspects contained in the ACR of the officer, wherein marks A
are awarded against such entries made in the ACRs of the
officers concerned for the relevant period.
36. Further, as per the records obtained by the appellant
from t~e respondents under the RTI Act at the time of his claim B
for promotion to the post of Battalion Commander was first
. considered, his AC Rs from year 1996 were considered. The
Instructions dated 29.12.2000 would be applicable
prospectively to the AC Rs of the appellant for relevant periods
which were prepared after those Instructions were issued. C
According to the Instructions, officers obtaining 0-14 marks
out of a total of 20 marks wou!d be graded over all 'Good'.
Thus, the appellant was entitled to promotion as he had been
awarded 1O marks as per the proceedings of DPC.
D
37. The High Court in the impugned judgment further
observed that the final reporting authority had downgraded the
appellant as an ·average' officer for the above relevant period.
As per the executive Instructions dated 10. 01.1985 issued by
the State Government, the Commandant General is the final E
Authority for the rank of the District Commander. That being
the factual position, the downgrading of the performance of
the appellant in his ACR for the above relevant period by the
respondent No. 4 was not valid as the same was done without
any authority and competence. The adverse entries in theACR F
have deprived the appellant of his right of promotion to the
post in question and therefore, the said adverse entries in the
AC Rs against the appellant are not legal and valid. The ACR
for the period 2000-2001 is extracted hereunder:
G
1. Integrity Correct
2. Conduct Very Good
H
550 SUPREME COURT REPORTS [2015] 11 S.C.R.
A 3. Health and Activeness Very Gcxxl
4.Personality and Initiative Very Gcxxl
5.Know]edge and Intelligence Very Gcxxl
B
fully
Cependable
7 .Power to Cam1and .Very Gcxxl
c
8 .Efficiency in Parade Correct
9 .M.:lral. courage an:l Very Gcxxl
efficiency to eaipcse c::xxaq>t
D suboxdinates
10.Inpartiality Irrpartial
11.Knowledge of F.nglish Very Gcxxl
E
12 .Knowledge of Punjabi an:l Very Gcxxl
Hindi and to make drafts in
these languages
F
13 .Knowledge of Civil xules Very Gcxxl
and regulatioos, Heme QJard
J\ct I adn:inistrat:icn
instmctials an:l ~
G
14 .Behavi.ollr and to Wlrk Very Gcxxl
with each other
H
DALJIT SINGH GREWAL v. STATE OF PUNJAB & ORS. 551
[V. GOPALAGOWDA, J.]
15 .Defect, i f af'¥ I whether Not A
bmught to his notice Applicable
16.lilether fit for praciotion At his a
tenn
B
17.lilether he disposes his Yes
work in Punjabi
18.GeDeral Palazjts He is
very good C·
and
responsib
le
officer
D
A perusal oftheACR forthe period 2000-2001 reveals
that though the general remarks stated that "He is very good
and responsible officer" respondent No. 4 had given a grade
which read, "/agree. An average officer". The said entry shows E
that he had agreed to all the remarks ·of the ACR given in
respect of columns 1 to 18 for that year by the Competent
Accepting Authority, but he further stated assessed the officer
to be an 'average' officer without assigning any reason F
whatsoever apart from his competence to make such adverse
entries. The overall grading of the ACR is based upon the
observations made by the Reporting Authority, Reviewing
Authority and final Accepting Authority. As per the entries made
by the respondent No. 4, he had agreed to the overall grading G
as given by the Accepting Authority. In such a case, he could
not have downgraded the overall grading in theACR by using
the words "an average officer". Further, if the comments made
on 20.05.2004 by the respondent No. 4 on the ACR for the
year 2000-2001 are being sought to justify the stand of denial H .
552 SUPREME COURT REPORTS [2015) 11 S.C.R.
A of promotion to the appellant to the post in question, then the
clarification needs to take effect from that date, i.e 20.05.2004.
In such a case, the appellant was to be assigned 3 marks as
per the instructions for the year 2003, when he was ignored
for the promotion for the first time.
B
38. A perusal of the copy of the ACR for the period 2003-
2004 reflects a true picture of the injustice that has been
perpetrated against the appellant. The ACR has been written
by Mr. Tejinder Singh, respondent No. 4 who was the Reporting
C Authority as the Divisional Commandant. The very same officer
was also the Reviewing Authority as Deputy Commandant
General. Further, the same officer also happened to be the
Final Accepting Authority as the Commandant General, as is
evident from his comment d~ted 30.09.2004. The fact that in
D the said year also the performance of the appellant had been
graded as 'average' clearly reveals the malafide intention of
the respondent nos.1-4 in deliberately denying the promotion
to the appellant to the post in question. According to the
respondents themselves, the executive Instructions dated
E 06.09.2001 have not been superseded by any other lnstruqtions
or rules framed by the competent authority. If these illegal
downgrading entries in the ACR for the relevant period are
ignored, then the appellant would attain 14 marks. As per the
F Instructions dated 06.09.2001, 12 marks were required for
promotion to the post as per the benchmark fixed.
39. Further, the adverse remarks for the period 1999-
2000 were conveyed to appellant vide communication dated
28.06.2000 by the D.G.P-cum- Commandant General. The
G representations dated 18.08.2000 and 25.08.2000 made by
the appellant against the same were submitted to respondent
No. 4. The said representation was rejected on 07.05.2001.
The appellant had challenged the same by filing Civil Suit No.
H 70 of 2001, wherein the respondent No. 4 was impleaded as
-DALJIT SINGH GREWAL v. STATE OF PUNJAB & ORS. 553
· [V. GOPALAGOWDA, J.]
defendant No. 3. The civil suit was decreed on 15.03.2002 in A
favour of the appellant. The said judgment and decree passed
in favour of the appellant has not been implemented by the
respondent Nos. 4 and 5, despite having attained finality, which
clearly reflects the fact that the respondent No.4 was not fair in
considering him for promotion to the post of Battalion B
Commander as provided under Rule 8(2) of the Rules.
According to the Rules, the appointment to the promotional
post shall be made on seniority-cum-merit basis. As per the
ACRs placed on record, the appellant has fulfilled the aforesaid
requirement of seniority-cum-merit by securing 14 marks, as C
per the Instructions in relation to all aspects entered in theACR. ·
The strong reliance placed upon the adverse remarks made
by the respondent No.4, who has made the same without
assigning any reasons, has resulted in the appellant being
0
denied of the promotional benefit, even though the order of
the respondent No. 4 was set aside by the judgment and decree
in Civil Suit no. 70 of 2001. The acti.on of respondent No. 4 in
denying the promotional benefit to the appellant is tainted with
malafides. It can further be observed from the record that it E
was respondent no.7 who had filed the reply on behalf of all
the respondents in the writ petition proceedings before the
High Court. It is important to note at this stage that respondent
No. 7 happens to be an officer junior to the appellant, who was
promoted to the post in question. The non-filing of written F
statement by respondent No. 4 traversing the allegations of
malafide against him proves the ma/afide in~ention on part of
the respondent No. 4. Therefore, there was no justification for
the respondent No. 4 in denying the promotional benefit to the
post of Battalion Commander to the appellant and. The learned G
senior counsel on behalf of the appellant has rightly placed
reliance on the case of Sukhdev Singh (~upra), wherein this
Court has lucidly laid down the law pertaining to communication
of ACR. It was held that if the ACR of the officer concerned is
H
554 SUPREME COURT REPORTS [2015] 11 S.C.R.
A to be used for the purpose of denying promotion, then all such
ACRs were required to be communicated to him, to enable
him to make a representation against his adverse entries made
intheACRs.
s 40. As per the record submitted by the respondents, the
appellant was given grade 'A+' for the year 2001-2002, but
only 1 mark was assigned. According to the executive
Instructions, the grade 'A+' is to be assigned 4 marks.
Accordingly, if 4 marks are assigned for the ACR of the
C appellant for the period 2001-2002, then he would have scored
12 marks at.the time of consideration for promotion in the year
2003, whereas admittedly, the appellant was required to
achieve only 10 marks in order to be promoted to the post of
Battallion Commander. Her.ice, if the calculation of marks made
D by the respondents on the various aspects in the ACR of the
appellant is believed to be true, then also he has achieved the
required benchmark. The action of the respondent No. 4 in
deliberately ignoring the claim of the appellant is vitiated in
law as the same is contrary to the Rules and records of ACR
E for the relevant period and Instructions issued by the State
Government laying down certain guiding principles.
41.Therefore, the order of denial of promotion to the
appellant, which has been affirmed by the High Court in its
F judgment and order passed in the Writ Petition and Review
Application is liable to be set aside.
42. For the reasons stated supra, we pass the following
order:-
G
(1) We set aside the impugned judgment and order
passed by the High Court in both the Civil Writ Petition
and the Review Application and also the order of denying
the promotional benefit by the respondents-Department
H
DALJIT SINGH GREWAL v. STATE OF PUNJAB & ORS. 555
[V. GOPALAGOWDA, J.]
to the post of the Battalion Commander from the year A
2001-2002;
(2) Further, we direct the respondent Nos. 1 to 5 to
reconsider the claim of the appellant in the light of our
findings and reasons recorded on the contentious factual B
and legal aspects so that he could get higher post of
Battalion Commander notionally to get pensionary
benefits as he has been prematurely retired from service
on 31.7.2007; and
c
(3) The said direction shall be complied with within 8
weeks from the date of the receipt of the copy of this
order and extend all the c.onsequential benefits for the
purpose of fixing his pensionary benefits and other
monetary benefits for which he is legally entitled to and o
submit the compliance report to this Court.
43. The appeal is allowed in the above said terms with
cost of Rs.10,000/- payable to the appellant by respondent
Nos. 1 to4. E
Kalpana K. Tripathy Appeal allowed.
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