UNION OF INDIA AND ORSversusG.R. MEGHWAL

                        [2022] 15 S.C.R. 481                            481


                  UNION OF INDIA AND ORS.                               A
                                 v.
                         G.R. MEGHWAL
                  (Civil Appeal No. 2021 of 2022)
                      SEPTEMBER 23, 2022                                B
        [M. R. SHAH AND B. V. NAGARATHNA, JJ.]
       Service Law: Promotion – Suitability for grant of Senior
Administrative Grade – Assessment of Annual Confidential Report
(ACR) – Deputy General Manager, BSNL of Indian Telecom Group
                                                                        C
A cadre, graded “Very Good” for the years 2005-2006 and 2006-
2007, however, only ‘Good’ for the year 2007-2008 – Officer was
communicated the same – He submitted his representation but the
same was rejected – Thereafter, in Departmental Promotion
Committee (DPC) held for grant of Non Functional-upgradation in
SAG, the officer was not found eligible on the ground that in the       D
year 2007-2008, his ACR was “Good” – Challenge to, by the officer
– Tribunal set aside the rejection of the representation and directed
to review the case of the respondent ignoring the below benchmark
“Good” for the year 2007- 2008 – Said order upheld by the High
Court – On appeal, held: Though the officer was graded as “Very
                                                                        E
Good” in the ACRs for the years 2005-2006 and 2006- 2007, and
was graded only “Good” in the ACR for the year 2007-2008 by the
very same reporting and reviewing officer, despite the fact that
specifically the respondent was given the opportunity against the
ACR for the year 2007-2008 – However, no valid reasons are given
for rejecting the representation – Thus, the tribunal and the High      F
Court did not commit any error in directing the Department to call
for a review meeting of the Screening Committee to re-assess the
suitability of the officer for the purpose of grant of SAG and while
doing so to exclude the ACR for the year 2007-2008.
      Dismissing the appeal, the Court                                  G
      HELD : 1.1 In the instant case, the below benchmark ACR
reporting the period from 01.04.2007 to 31.03.2008 was
communicated to the respondent vide communication dated
08.06.2010 in respect of which representation was made by the
respondent on 19.06.2010. The same was rejected as per the              H
                                481
482            SUPREME COURT REPORTS                    [2022] 15 S.C.R.


A     communication dated 01.10.2010. According to the respondent,
      the reviewing officer was due for retirement on 31.03.2008 and
      the respondent submitted self-appraisal report on 15.04.2008 for
      the period 01.04.2007 to 31.03.2008 and reporting officer graded
      as “Good” on 17.04.2008. Further, reviewing officer signed and
      accepted the same without any date in spite of fact that he had
B
      retired on 31.03.2008 as per Annexure A-6 to the application
      filed by the respondent before the Tribunal. According to the
      respondent, his representation was not being objectively
      considered. In the circumstances, Departmental Screening
      Committee subsequently assessed him unfit for grant of
C     promotion i.e., grant of NFU in SAG of ITS Group-A. [Para 7][495-
      D-F]
            1.2 The tribunal on perusal of Annexure A-4/being ACRs
      for three years i.e., 2005-06, 2006-07 and 2007-08 has noted that
      for the year 2007-08 highly damaging remarks have been
D     recorded by the same reporting authority and endorsed by the
      same reviewing authority. The remarks are totally opposite to
      those entered by the same authority previous years. The
      comparison of the remarks made in the ACRs for the year 2007-
      08 and for the years 2005-06 and 2006-07 have been made and
      extracted in the order of the Tribunal. [Para 8][495-G-H]
E
            1.3 The Tribunal noted that adverse remarks were not
      communicated to the respondent herein within the time limits
      prescribed for such communication under the prevailing rules
      governing the ACRs. Further attention of the officer was not
      drawn during the year itself, to supposed falling standards along
F     with necessary caution/advice so as to give him a chance to
      improve. The tribunal further noted that it is not the case of below
      benchmark grading but a case of recording adverse remarks in
      the extreme. That the representations made by the respondent
      were not considered objectively, dispassionately, and fairly as
G     there were contradiction in the qualities or attributes
      communicated in the said ACRs which were wholly contradictory
      to each other. In the circumstances, the tribunal held that
      “adverse remarks made for the year 2007-08 were sweeping,
      extreme, and inconsistent with the previous remarks. Hence it
      was held that the rejection of the representation was unjustified
H
        UNION OF INDIA AND ORS. v. G.R. MEGHWAL                       483


and the same was set aside. It was further observed by the tribunal   A
that the assessment of 2007-08 were clearly arbitrary and
inconsistent and ought not to be allowed to stand in the way of
proper assessment of the respondent by the Screening
Committee for his suitability to be promoted to a higher grade.
Hence, a direction was issued to the Screening Committee to
                                                                      B
consider and reassess the suitability of the respondent herein
for the purpose of grant of SAG by excluding the ACR of 2007-08
and if the respondent was found suitable for grant of consequential
benefits. Against the order of the tribunal the Union of India, the
appellant preferred a writ petition before the High Court, which
reiterated what had been observed by the tribunal in its order        C
and dismissed the writ petition. [Para 8.1][498-A-E]
      1.4 On perusal of what has been extracted by the Tribunal
from the ACRs of 2005-06, it is noted that the respondent has
been graded as “Very Good” since he has very good knowledge
in technical field as well as of administrative matters; willing to   D
assume responsibility; has good organizing capability; motivating
ability and timely and proper guidance giving capability. The
respondent has the capacity/resourcefulness to anticipate
problems in advance as well as unforeseen situations. He has
very good quality decision-making ability and is able to weigh
pros and cons of alternatives and good capability of communication    E
and present arguments in oral and written manner and good skill
and capacity of evaluating and recording performance of
subordinates in an impartial and objective manner. Similarly in
the remarks for the year 2006-07, it has been written that the
respondent has very good technical knowledge as well as               F
administrative knowledge. He has very good organizing capacity
and was able to motivate and provide timely and proper guidance
to subordinates. He has good skill and capacity in evaluating and
recording performance of subordinates in an impartial and
objective manner. As against the said favourable remarks for the
previous two years, in the year 2007-08 it has been stated that       G
though the technical knowledge of the respondent is good, his
financial and administrative knowledge is poor; that he has hardly
understood the environment in anticipating change; that he was
never willing to assume responsibility, and had poor organising
                                                                      H
484           SUPREME COURT REPORTS                     [2022] 15 S.C.R.


A     capacity and cannot anticipate problems and unforeseen situations
      and does not take additional responsibility and has poor decision-
      making quality and average ability in communication and
      presenting case problems. [Para 9][498-F-H; 499-A-D]
             1.5 In the facts and circumstances of the case and
B     considering the fact that though the respondent was graded as
      “Very Good” in the ACRs for the years 2005-2006 and 2006-
      2007 and was graded only “Good” in the ACR for the year 2007-
      2008 by the very same reporting and reviewing officer, despite
      the fact that specifically the respondent was given the opportunity
      against the ACR for the year 2007-2008. However, no valid
C     reasons are given for rejecting the representation, the Court is
      of the opinion that in view of the said facts and circumstances,
      the tribunal and the High Court have not committed any error in
      directing the Department to call for a review meeting of the
      Screening Committee to re-assess the suitability of the
D     respondent for the purpose of grant of SAG and while doing so to
      exclude the ACR for the year 2007-2008. Therefore, in the facts
      and circumstances of the case, no interference is called for. [Para
      10][499-D-F]
            Dev Dutt Vs. Union of India and Ors., (2008) 8 SCC
E           725 : [2008] 8 SCR 174; Abhijit Ghosh Dastidar Vs.
            Union of India & Ors., (2009) 16 SCC 146 : 2015 (9)
            SCALE 39; Sukhdev Singh Vs. Union of India and Ors.,
            (2013) 9 SCC 573; Sukhdeo Vs. Commissioner Amravati
            Division, Amravati and Anr., (1996) 5 SCC 103 : [1996]
            2 Suppl. SCR 287; High Court of Judicature at
F           Allahabad Vs. Sarnam Singh and Anr., (2000) 2 SCC
            339 : [1999] 5 Suppl. SCR 344; Dalpat Abasaheb
            Solunke and Ors. Vs. Dr. B.S. Mahajan and Ors., AIR
            1990 SC 434 : 1989 (4) JT 487 – referred to.
                            Case Law Reference
G
      [1996] 2 Suppl. SCR 287          referred to          Para 3.1
      [1999] 5 Suppl. SCR 344          referred to          Para 3.1
      [2008] 8 SCR 174                 referred to          Para 3, 6.2

H
        UNION OF INDIA AND ORS. v. G.R. MEGHWAL                            485


      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2021                  A
of 2022.
      From the Judgment and Order dated 29.03.2016 of the High Court
of Judicature for Rajasthan Bench at Jaipur in DB Civil Writ Petition
No.740 of 2016.
      Ms. Madhavi Divan, ASG, Gurmeet Singh Makker, Ms. Neela              B
Kedar Gokhale, Ms. Praveena Gautam, Ms. Vimla Sinha, Nacjoleta Joshi,
Advs. for the Appellants.
      Mukesh Kumar Sharma, Adv. for the Respondent.
      The Judgment of the Court was delivered by                           C
      M. R. SHAH, J.
       1. Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the High Court of Judicature for Rajasthan at Jaipur
in DBCWP No. 740 of 2016 by which the High Court has dismissed the
said writ petition preferred by the appellants and has confirmed the       D
judgment and order passed by the learned Tribunal allowing the O.A.
No.430 of 2011 by directing the Department to call for a review meeting
of the Screening Committee to re-assess his suitability for the purpose
of grant of SAG and while doing so to exclude the ACR of 2007-2008,
Union of India and others have preferred the present appeal.
                                                                           E
      2. The facts leading to the present appeal in a nutshell are as
under:-
       2.1 The respondent herein, who belonged to the cadre of Indian
Telecom Group A was sent on deputation to BSNL. He was posted as
Deputy General Manager, BSNL, Sikar. His ACR grading was “Very             F
Good” for the years 2005-2006 and 2006-2007. However, for the year
2007-2008, his ACR grading was only “Good”. The below benchmark
grading for the year 2007-2008 was communicated to him vide letter
dated 13.05.2010. The respondent was informed that if he was not
satisfied with the same, he may submit his representation to the General
Manager, Telecom, Rajasthan Circle, Jaipur. The respondent                 G
accordingly submitted a representation on 19.06.2010. It was the case
on behalf of the respondent that he got ACR grading as “Very Good”
for the years 2005-2006 and 2006-2007, however, for the year 2007-
2008, he got ACR grading as only “Good”, despite the fact that in all
the three years, the reporting officer and the reviewing authority was     H
486            SUPREME COURT REPORTS                          [2022] 15 S.C.R.


A     same. It was also the case on behalf of the respondent that despite
      there being no deficiency or inefficiency in performance of his work,
      the Reviewing Officer erroneously rated him “Good” in the ACR of
      the year 2007-2008, instead of “Very Good”, as was given to him in
      ACRs of previous two years.
B           2.2 His representation came to be turned down/rejected vide
      communication/order dated 01.10.2010. That thereafter the meeting of
      the Departmental Promotion Committee (hereinafter referred to as the
      “DPC”) was held on 28.12.2010 to consider the grant of NFU in SAG.
      The respondent was not found eligible by the DPC on the ground that in
      the year 2007-2008, his ACR was “Good”. Therefore, the respondent
C     preferred O.A. No. 430 of 2011 before the Central Administrative
      Tribunal.
             2.3 Before the Tribunal, it was the case on behalf of the respondent
      that his grading as “Good” in the year 2007-2008 and rejection of his
      representation against the below benchmark was arbitrary and unjustified
D     in as much as no shortcomings in his work during the period in question
      were ever brought to his notice.
             2.4 The Tribunal opined that the remarks entered for the year
      2007-2008 were clearly adverse, which warranted communication to
      the officer concerned within the time limit prescribed. This was to enable
E     him to submit his representation but no such opportunity was given to
      the officer. Considering the fact that in the earlier two years his ACRs
      were found to be “Very Good” and the subsequent ACR for the year
      2007-2008 though was by the same reporting officer, the same was
      “Good”, the same was arbitrary. The Tribunal hence set aside the rejection
F     of the representation and directed to review the case of the respondent
      ignoring the below benchmark “Good” for the year 2007-2008 and to
      reconsider the case of the respondent accordingly.
             2.5 Feeling aggrieved and dissatisfied with the judgment and order
      passed by the learned Tribunal, the Union of India and others preferred
G     the writ petition before the High Court. By the impugned judgment and
      order, the High Court has dismissed the said writ petition, the Union of
      India and others have hence preferred the present appeal.
             3. Ms. Madhavi Divan, learned ASG has vehemently submitted
      that in the present case before the DPC met, an opportunity was given
      to the respondent to make his representation against the below
H
        UNION OF INDIA AND ORS. v. G.R. MEGHWAL                              487
                     [M. R. SHAH, J.]

benchmark ACR of the year 2007-2008. It is submitted that the same           A
was in accordance with the O.Ms. dated 14.05.2009 and 13.04.2010,
which were issued after considering the decision of this Court in the
case of Dev Dutt Vs. Union of India and Ors., (2008) 8 SCC 725.
It is contended that the High Court as well as the learned Tribunal have
erred in directing to ignore the below benchmark ACR for the year
                                                                             B
2007-2008 mainly and solely on the ground that prior to writing the below
benchmark ACR, no opportunity was given to the respondent officer. It
is submitted that the aforesaid view has been taken relying upon the
decisions of this Court in the case of Dev Dutt (supra); Abhijit Ghosh
Dastidar Vs. Union of India & Ors., (2009) 16 SCC 146 (in this
case view taken in Dev Dutt (supra) was approved by this Court) and          C
the decision of this Court in the case of Sukhdev Singh Vs. Union of
India and Ors., (2013) 9 SCC 573.
       3.1 Learned ASG appearing on behalf of the appellants has
submitted that though it was held by this Court in the case of Sukhdeo
Vs. Commissioner Amravati Division, Amravati and Anr., (1996)                D
5 SCC 103 that downgrading by the Reviewing Officer in comparison
to his previous grading without opportunity of hearing to the concerned
employee is illegal, however, this Court in the subsequent decision in the
case of High Court of Judicature at Allahabad Vs. Sarnam Singh
and Anr., (2000) 2 SCC 339 has explained the decision in the case of
Sukhdeo (supra) and this Court has not accepted the view that before         E
an adverse entry was recorded in the character roll, an opportunity of
hearing was, by any principle, required to be given to the officer.
      3.2 It is submitted that in that view of the matter and when the
respondent was having below benchmark ACR, i.e., “Good” in the year
2007-2008, which was considered by the DPC, the respondent was rightly       F
denied the functional upgradation in the SAG of ITS Group-A in the pay
band-4 of Rs. 37,400-67,000 with grade pay of Rs. 10,000/-.
       3.3 It is further submitted by Ms. Divan, learned ASG that merely
because in the earlier years, the respondent achieved “Very Good”, only
on that ground, it cannot be held that awarding “Good” in the subsequent     G
year was arbitrary and/or mala fide. It is submitted that the quality of
work performance of any employee may differ during the different period
even under the same reporting officer/reviewing authority. It is only upto
the reporting officer and reviewing authority to judge his performance
and give suitable grading.                                                   H
488             SUPREME COURT REPORTS                          [2022] 15 S.C.R.


A            3.4 It is submitted that in the present case, the subsequent
      representation against the below benchmark was considered by a duly
      constituted committee consisting of expertise on the subject. It is
      submitted that after considering the grading of 2007-2008 and material
      on record, the Committee rejected the representation of the respondent
      herein. Reliance was placed upon the decision of this Court in the case
B
      of Dalpat Abasaheb Solunke and Ors. Vs. Dr. B.S. Mahajan and
      Ors., AIR 1990 SC 434. It is submitted that as held by this Court
      whether a particular candidate is fit for a particular post or not, has to be
      decided by the duly constituted committee, which has expertise on the
      subject. It is submitted that as observed, the Court has no such expertise
C     and the decision of the selection committee can be interfered with only
      on limited grounds, such as illegality or patent material irregularity in the
      constitution of the committee or its procedure vitiating the selection or
      proved mala-fides affecting the selection etc.
             3.5 Now, so far as the reliance placed upon the decision of this
D     Court in the case of Dev Dutt (supra); subsequent decision in the case
      of Abhijit Ghosh Dastidar (supra) and in the case of Sukhdev Singh
      (supra) is concerned, it is submitted by Ms. Divan, learned ASG that
      none of the aforesaid decisions shall be applicable to the facts of the
      case on hand. It is submitted that in fact after the decision of this Court
      in the case of Dev Dutt (supra), the department issued two O.M.s
E     dated 14.05.2009 and 13.04.2010 and the opportunity to the employee/
      officer against the below benchmark ACR was given. It is submitted
      that even otherwise in the aforesaid decisions, either the ACRs were
      not communicated at all or it was found that adverse remarks suffer
      from inconsistency or lack of bona fides.
F            3.6 Making the above submissions and relying upon the decision
      of this Court in the case of Sarnam Singh (supra) and on the O.Ms.
      dated 14.05.2009 and 13.04.2010, it is prayed to allow the present appeal
      and quash and set aside the orders passed by the High Court as well as
      the learned Tribunal.
G          4. Present appeal is vehemently opposed by Shri Mukesh Kumar
      Sharma, learned counsel appearing on behalf of the respondent officer.
            4.1 It is vehemently contended by the learned counsel appearing
      on behalf of the respondent that considering the fact that in the earlier
      years 2005-2006 and 2006-2007, the respondent’s ACRs were “Very
H     Good” and in the year 2007-2008, the very reporting officer/reviewing
         UNION OF INDIA AND ORS. v. G.R. MEGHWAL                               489
                      [M. R. SHAH, J.]

authority gave the below benchmark “Good” and before giving the below          A
benchmark ACR – “Good”, no opportunity was given to the respondent
to improve himself against the proposed below benchmark ACR, both,
the learned Tribunal as well as the High Court have rightly directed to
review the case of the respondent ignoring the below benchmark ACR
of the year 2007-2008.
                                                                               B
       4.2 Relying upon the decisions of this Court in the case of Dev
Dutt (supra), Abhijit Ghosh Dastidar (supra) and Sukhdev Singh
(supra), it is urged that as observed and held by this Court an opportunity
to make representation against the adverse remarks/below benchmark
has to be given within a reasonable time. That in the present case, such
an opportunity was not given within a reasonable time and even otherwise       C
on facts also when the very reporting officer/reviewing authority gave
“Very Good” in the previous years and in the subsequent year all of a
sudden gave below benchmark “Good”, it is rightly directed to ignore
the below benchmark “Good”.
      5. Heard the learned counsel for the respective parties at length.       D

       6. In the present case, the learned Tribunal as well as the High
Court have directed the department to review the case of the respondent
by ignoring the below benchmark of “Good” in the year 2007-2008 mainly
on the following grounds:- (i) that in the earlier years, the very reporting
officer/reviewing authority awarded “Very Good” for the years 2005-            E
2006 and 2006-2007 and the very reporting officer/reviewing authority
has given below benchmark “Good” for the year 2007-2008 and therefore
the same is arbitrary and there is no basis to award the below benchmark
– “Good”; (ii) that before the below benchmark ACR “Good” for the
year 2007-2008, no opportunity was given to the respondent officer to          F
improve himself and no deficiency was pointed out; and (iii) that no
opportunity was given to the respondent officer to make representation
against the proposed below benchmark ACR of the year 2007-2008.
While giving the aforesaid findings and while arriving at the aforesaid
final conclusion, the Tribunal as well as the High Court have heavily
relied upon the decisions of this Court in the case of Sukhdeo (supra);        G
Dev Dutt (supra); Abhijit Ghosh Dastidar (supra) and Sukhdev
Singh (supra). However, on considering the aforesaid decisions, it
emerges that in the aforesaid cases, the adverse ACRs either were not
communicated at all and/or on facts found to be inconsistent and suffering
from lack of bona fides.                                                       H
490            SUPREME COURT REPORTS                          [2022] 15 S.C.R.


A           6.1 In the case of Dev Dutt (supra), this Court has held in
      paragraphs 36 and 37 as under:-
            “36. In the present case, we are developing the principles of natural
            justice by holding that fairness and transparency in public
            administration requires that all entries (whether poor, fair, average,
B           good or very good) in the annual confidential report of a public
            servant, whether in civil, judicial, police or any other State service
            (except the military), must be communicated to him within a
            reasonable period so that he can make a representation for its
            upgradation. This in our opinion is the correct legal position even
            though there may be no rule/G.O. requiring communication of the
C           entry, or even if there is a rule/G.O. prohibiting it, because the
            principle of non-arbitrariness in State action as envisaged by Article
            14 of the Constitution in our opinion requires such communication.
            Article 14 will override all rules or government orders.
            37. We further hold that when the entry is communicated to him
D           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
E           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
F           governance be possible.”
             6.2 In the instant case, the respondent was graded as “Very Good”
      in the ACRs for the years 2005-06 and 2006-07. However, in the year
      2007-08 he was graded only “Good” despite the fact that for all the
      three years, the reporting and reviewing officer were same. In the case
      of Dev Dutt Vs. Union of India - [(2008) 8 SCC 725], it was observed
G     that all entries in the ACR of a public servant must be communicated to
      him within the reasonable period so that he can make a representation
      for his upgradation despite there be no rule or government order to that
      effect. Pursuant to the judgment in Dev Dutta (supra), OMs dated
      14.05.2009 and 13.04.2010 were issued by the appellant herein. The
H     same are extracted as under:
   UNION OF INDIA AND ORS. v. G.R. MEGHWAL                               491
                [M. R. SHAH, J.]

                                               “ANNEXURE P-2             A
                No. 2101 1/1/2005-Estt (A) (Pt-II)
                       Government of India
       Ministry of Personnel, Public Grievances and Pensions
              (Department of Personnel and Training)                     B
                         North Block, New Delhi, 14th May, 2009
                   OFFICE MEMORANDUM
Subject:- Maintenance and preparation of Annual Performance
Appraisal Reports-communication of all entries for fairness and          C
transparency in public administration.
The undersigned is directed to invite the attention of the Ministries/
Departments to the existing provisions in regard to preparation
and maintenance of Annual Confidential Reports which inter-alia
provide that only adverse remarks should be communicated to              D
the ‘officer reported upon for representation, if any. The Supreme
Court has held in their judgment dated 12.5.2008 in the case of
Dev Dutt vs. Union of India (Civil Appeal No. 7631 of 2002)’ that
the object of writing the confidential report and making entries is
to give an opportunity to the public servant to improve the
performance. The 2nd Administrative Reforms Commission in their          E
10th Report has also recommended that the performance appraisal
system for all services be made more consultative and transparent
on the lines of the PAR of the All India Services.
2. Keeping in view the above position, the matter regarding
communication of entries in the ACRs in the case of civil services       F
under the, Government of India has been further reviewed and
the undersigned is directed to convey the following decisions of
the Government:
(i)     The existing nomenclature of the Annual Confidential Report
        will be modified as Annual Performance Assessment Report         G
        (APAR).
(ii)    The full APAR including the overall grade and assessment
        of integrity shall be communicated to the concerned officer
        after the Report is complete with the remarks of the
        Reviewing Officer and the Accepting Authority wherever           H
492         SUPREME COURT REPORTS                         [2022] 15 S.C.R.


A             such system is in vogue. Where Government servant has
              only one supervisory level above him as in the case of
              personal staff attached to officers, such communication shall
              be made after the reporting officer has completed the
              performance assessment.
B     (iii)   The section entrusted with the maintenance of APARs after
              its receipt shall disclose the same to the officer reported
              upon.
      (iv)    The concerned officer shall be given the opportunity to make
              any representation against the entries and the final grading
C             given in the Report within a period of fifteen days from the
              date of receipt of the entries in the APAR. The
              representation shall be restricted to the specific factual
              observations contained in the report leading to assessment
              of the officer in terms of attributes, work output etc. While
              communicating the entries, it shall be made clear that in
D             case no representation is received within the fifteen days,
              it shall be deemed that he/she has no representation to make.
              If the concerned APAR Section does not receive any
              information from the concerned officer on or before fifteen
              days from the date of disclosure, the APAR will be treated
E             as final.
      (v)     The new system of communicating the entries in the APAR
              shall be made applicable prospectively only with effect from
              the reporting period 2008-09 which is to be initiated after
              1st April, 2009.
F     (vi)    The competent authority for considering adverse remarks
              under the existing instructions may consider the
              representation, if necessary, in consultation with the reporting
              and/or reviewing officer and shall decide the matter
              objectively based on the material placed before him within
G             a period of thirty days from the date of receipt of the
              representation.
      (vii)   The competent authority after due consideration may reject
              the representation or may accept and modify the APAR
              accordingly. The decision of the competent authority and
              the final grading shall be communicated to the officer
H
  UNION OF INDIA AND ORS. v. G.R. MEGHWAL                               493
               [M. R. SHAH, J.]

      reported upon within fifteen days of receipt of the decision      A
      of the competent authority by the concerned APAR Section.
3. All Ministries/Departments are requested to bring to the notice
of all the offices under them for strict implementation of the above
instructions.
                                               (C.A. Subramanian)       B

                                                            Director


                                                ANNEXURE P-3
                                                                        C
                     No. 21011/1/2010-Estt.A
                       Government of India
     Ministry of Personnel, Public Grievances & Pensions
              Department of Personnel & Training
                                                                        D
                                          North Block, New Delhi
                                         Dated the 13th April, 2010
                   OFFICE MEMORANDUM
Subject: Below Benchmark gradings in ACRs prior to the
                                                                        E
reporting period 2008-09 and objective consideration of
representation by the competent authority against remarks in the
APAR or for upgradation of the final grading.
The undersigned is directed to say that prior to the reporting period
2008-09, only the adverse remarks in the ACRs had to be
                                                                        F
communicated to the concerned officer for representation, if any
to be considered by the competent authority. The question of
treating the grading in the ACR which is below the benchmark
for next promotion has been considered in this Department and it
has been decided that if an employee is to be considered for
promotion in a future DPC and his ACRs prior to the period 2008-        G
09 which would be reckonable for assessment of his fitness in
such future DPCs contain final grading which are below the
benchmark for his next promotion, before such ACRs are placed
before the DPC, the concerned employee will be given a copy of
the relevant ACR for his representation, if any, within 15 days of
                                                                        H
494            SUPREME COURT REPORTS                         [2022] 15 S.C.R.


A           such communication, it may be noted that only below benchmark
            ACR for the period relevant to promotion need be sent. There is
            no need to send below benchmark ACRs of other years.
            2. As per existing instructions, representations against the remarks
            or for upgradation of the final grading given in the APAR
B           (previously known as ACR) should be examined by the competent
            authority in consultation, if necessary, with the Reporting and the
            Reviewing Officer, if any while considering the representation,
            the competent authority decides the matter objectively in a quasi-
            judicial manner on the basis of material placed before it. This
            would imply that the competent authority shall take into account
C           the contentions of the officer who has represented against the
            particular remarks/grading in the APAR and the views of the
            Reporting and Reviewing officer if they are still in service on the
            points raised in the representation vis-à-vis the remarks/gradings
            given by them in the APAR. The UPSC has informed this
D           Department that the Commission has observed that while deciding
            such representations, the competent authorities sometimes do not
            take into account the views of Reporting/Reviewing Officers if
            they are still in service. The Commission has further observed
            that in a majority of such cases, the competent authority does not
            give specific reasons for upgrading the below benchmark ACR/
E           APAR gradings at par with the benchmark for next promotion.
            3. All Ministries/Departments are therefore requested to inform
            the competent authorities while forwarding such cases to them to
            decide on the representations against the remarks or for
            upgradation of the grading in the APAR that the decision on the
F           representation may be taken objectively after taking into account
            the views of the concerned Reporting/Reviewing Officers if they
            are still in service and in case of upgradation of the final grading
            given in the APAR, specific reasons therefore may also be given
            in Inc order of the competent authority.
G                                                         (C.A. Subramanian)
                                                                     Director”
            On perusal of OM dated 14.05.2009, it is noted that the new system
      of communicating the entries in Annual Performance Assessment Report
      (APAR) provides that the same should be communicated within a period
H
        UNION OF INDIA AND ORS. v. G.R. MEGHWAL                              495
                     [M. R. SHAH, J.]

of fifteen days from the date of receipt of the entries in the APAR. The     A
new system is applicable prospectively with effect from the reporting
period 2008-09, which is initiated after 01.04.2009.
       6.3 Further as per OM dated 13.04.2010, it has been stated that
the question of treating the grading in the ACR which is below the
benchmark for next promotion has been considered by the Department           B
and it has been decided that if an employee is to be considered for
promotion in a future DPC and his ACRs prior to the period 2008-09
which would be reckonable for assessment of his fitness in such future
DPCs contain final grading which are below the benchmark for his next
promotion, before such ACRs are placed before the DPC, the concerned         C
employee will be given a copy of the relevant ACR for his representation
if any, within fifteen days of such communication and only below
benchmark ACR for the period relevant to promotion need be sent. There
is no need to send below benchmark ACRs of other years.
       7. In the instant case, the below benchmark ACR reporting the         D
period from 01.04.2007 to 31.03.2008 was communicated to the
respondent vide communication dated 08.06.2010 in respect of which
representation was made by the respondent on 19.06.2010. The same
was rejected as per the communication dated 01.10.2010. According to
the respondent, the reviewing officer was due for retirement on
31.03.2008 and the respondent submitted self-appraisal report on             E
15.04.2008 for the period 01.04.2007 to 31.03.2008 and reporting officer
graded as “Good” on 17.04.2008. Further, reviewing officer signed and
accepted the same without any date in spite of fact that he had retired
on 31.03.2008 as per Annexure A-6 to the application filed by the
respondent before the Tribunal. According to the respondent, his             F
representation was not being objectively considered. In the circumstances,
Departmental Screening Committee subsequently assessed him unfit for
grant of promotion i.e., grant of NFU in SAG of ITS Group-A.
       8. The Tribunal on perusal of Annexure A-4/being ACRs for three
years i.e., 2005-06, 2006-07 and 2007-08 has noted that for the year         G
2007-08 highly damaging remarks have been recorded by the same
reporting authority and endorsed by the same reviewing authority. The
remarks are totally opposite to those entered by the same authority
previous years. The comparison of the remarks made in the ACRs for
the year 2007-08 and for the years 2005-06 and 2006-07 have been
                                                                             H
496            SUPREME COURT REPORTS                          [2022] 15 S.C.R.


A     made and extracted in paragraphs 4 and 5 of the order of the Tribunal.
      The same are extracted as under:
            “4. We agree with the respondents that an officer need not earn
            the same grading every year and the grading could be different
            each year based on his performance. If, this was not the case, the
B           whole purpose of an annual assessment would stand defeated.
            However, a careful perusal of the copies of ACRs produced by
            the applicant at Annexure A/4 for the 3 years i.e. 2005-06, 2006-
            07 & 2007-08 shows that in the year 2007-08 highly damaging
            remarks have been recorded by the same reporting authority and
            endorsed by the same reviewing authority. Even in regard to
C
            matters which could be regarded as personal attributes as different
            from performance parameters – such as communication skills,
            capacity for appraisal, ability to weigh pros and cons before taking
            a decision, organizing capability, domain knowledge in respect of
            the area of work etc. the remarks appear to be virtually the opposite
D           of those entered by the same authority in the previous years. To
            illustrate, the reporting authority had entered the following remarks
            in his ACR of 2005-06, 2006-07 and 2007-08 :-
               ACR comments for the year 2005-06:
               He has very good knowledge of technical field. Also level of
E              application of related instructions was also very good. He has
               very good knowledge of administrative matters and his level
               of application related instruction was very good. He was willing
               to assume responsibility. He has very good organizing capability,
               motivating ability and timely and proper guidance giving
F              capability. He has very good capacity/resourcefulness to
               anticipate problems in advance and to take action to handle
               such situations as well as unforeseen situations. He has very
               good quality of decision making and is able to weigh pros and
               cons of alternatives. He has good capability of communication
               and present arguments in oral and written way. He has very
G              good skill and capacity of evaluating and recording performance
               of subordinates in an impartial and objective manner.
               ACR Comments for the year 2006-07:
               He has very good technical knowledge. He has very good
H              administrative knowledge. He has very good capacity to set
  UNION OF INDIA AND ORS. v. G.R. MEGHWAL                            497
               [M. R. SHAH, J.]

   targets. He can anticipate change, understood environment and     A
   contributed new ideas. He was generally willing to assume
   responsibilities. He has very good organizing capacity and was
   able to motivate and provide timely and proper guidance to
   subordinates. He could handle unforeseen situations at his own
   and was willing to take responsibility. He has good skill and
                                                                     B
   capacity in evaluating and recording performance of
   subordinates in an impartial and objective manner.
5. As against the aforesaid remarks, ACR of the officer for the
year 2007-08 contains following remarks recorded by the same
authority:
                                                                     C
   Technical knowledge is good. Financial knowledge is poor.
   Administrative knowledge is very poor particularly in tender
   work/rulings application. He was always have to be chased to
   set targets for himself and subordinates. He hardly understood
   the environment in anticipating change and contributing new
   ideas/methods of work he was just average. He was never           D
   willing to assume responsibility, had poor organizing capacity
   and was average in motivating/providing timely and proper
   guidance to staff. He was incapacitated and very poor in
   anticipating problems and handle unforeseen situations on his
   own. He was never willing to take additional responsibility and   E
   new areas of work. He had very poor decision making quality
   and also very poor in weighing pros and cons of alternatives.
   He has average ability to communicate and present arguments
   in written and poor in verbal.”
6. It would be clear from remarks entered for the year 2007-08       F
that they were clearly adverse which warranted communication
to the officer within the time limits prescribed to enable him to
submit his representation. Many of the remarks were the exact
opposite of the positive attributes found in him in the previous
years by the same authority. Admittedly, remarks were not
communicated to the applicant within the time limits prescribed      G
for such communication under the prevailing rules governing
ACRs. There is also no evidence of the attention of the officer
being drawn during the year itself to his falling standards along
with necessary caution/advice so as to give him a chance to
improve.”                                                            H
498             SUPREME COURT REPORTS                          [2022] 15 S.C.R.


A            8.1 The Tribunal has also noted that adverse remarks were not
      communicated to the respondent herein within the time limits prescribed
      for such communication under the prevailing rules governing the ACRs.
      Further attention of the officer was not drawn during the year itself, to
      supposed falling standards along with necessary caution/advice so as to
      give him a chance to improve. The Tribunal has further noted that it is
B
      not the case of below benchmark grading but a case of recording adverse
      remarks in the extreme. That the representations made by the respondent
      were not considered objectively, dispassionately, and fairly as there were
      contradiction in the qualities or attributes communicated in the said ACRs
      which were wholly contradictory to each other. In the circumstances,
C     the Tribunal held that “adverse remarks made for the year 2007-08 were
      sweeping, extreme, and inconsistent with the previous remarks. Hence
      it was held that the rejection of the representation was unjustified and
      the same was set aside. It was further observed by the Tribunal that the
      assessment of 2007-08 were clearly arbitrary and inconsistent and ought
      not to be allowed to stand in the way of proper assessment of the
D
      respondent by the Screening Committee for his suitability to be promoted
      to a higher grade. Hence, a direction was issued to the Screening
      Committee to consider and reassess the suitability of the respondent
      herein for the purpose of grant of SAG by excluding the ACR of 2007-
      08 and if the respondent was found suitable for grant of consequential
E     benefits. Against the order of the Tribunal the Union of India, the appellant
      herein preferred a writ petition before the High Court, which reiterated
      what had been observed by the Tribunal in paragraph 6 of its order and
      dismissed the writ petition.
             9. On perusal of what has been extracted by the Tribunal from
F     the ACRs of 2005-06, we note that the respondent has been graded as
      “Very Good” since he has very good knowledge in technical field as
      well as of administrative matters; willing to assume responsibility;
      has good organizing capability; motivating ability and timely and
      proper guidance giving capability. The respondent has the capacity/
      resourcefulness to anticipate problems in advance as well as
G     unforeseen situations. He has very good quality decision-making
      ability and is able to weigh pros and cons of alternatives and good
      capability of communication and present arguments in oral and
      written manner and good skill and capacity of evaluating and
      recording performance of subordinates in an impartial and objective
H     manner.
         UNION OF INDIA AND ORS. v. G.R. MEGHWAL                                499
                      [M. R. SHAH, J.]

       Similarly in the remarks for the year 2006-07, it has been written       A
that the respondent has very good technical knowledge as well as
administrative knowledge. He has very good organizing capacity
and was able to motivate and provide timely and proper guidance
to subordinates. He has good skill and capacity in evaluating and
recording performance of subordinates in an impartial and objective
                                                                                B
manner.
       As against the aforesaid favourable remarks for the previous two
years, in the year 2007-08 it has been stated that though the technical
knowledge of the respondent is good, his financial and
administrative knowledge is poor; that he has hardly understood
the environment in anticipating change; that he was never willing               C
to assume responsibility, and had poor organising capacity and
cannot anticipate problems and unforeseen situations and does not
take additional responsibility and has poor decision-making quality
and average ability in communication and presenting case problems.
       10. Therefore, in view of the above and in the facts and                 D
circumstances of the case and considering the fact that though the
respondent was graded as “Very Good” in the ACRs for the years 2005-
2006 and 2006-2007 and was graded only “Good” in the ACR for the
year 2007-2008 by the very same reporting and reviewing officer, despite
the fact that specifically the respondent was given the opportunity against     E
the ACR for the year 2007-2008. However, no valid reasons are given
for rejecting the representation, we are of the opinion that in view of the
aforesaid facts and circumstances, the learned Tribunal and the High
Court have not committed any error in directing the Department to call
for a review meeting of the Screening Committee to re-assess the
suitability of the respondent for the purpose of grant of SAG and while         F
doing so to exclude the ACR for the year 2007-2008. Therefore, in the
facts and circumstances of the case, no interference of this Court is
called for.
      In view of the above and for the reasons stated above, present
appeal fails and the same deserves to be dismissed and is accordingly           G
dismissed.

Nidhi Jain                                                  Appeal dismissed.
(Assisted by : Tamana, LCRA)
                                                                                H