Judgment:
1. The applicant is serving as a Deputy Commissioner of Income Tax and he is aggrieved by his non-promotion to the post of joint Commissioner of Income Tax. The DPC constituted for promotion to the said post in September 2003 did not include his name in the select list of the promotees and hence, he had represented his case vide his representation dated 30.10.2003 pointing out that his performance all through out had been 'very good' and, he had never been communicated any adverse remarks in his ACRs and he was never informed that his performance was below the bench mark of 'very good'. Since he had not been communicated any remarks regarding his performance, he had been under the impression that his performance was quite satisfactory and upto expected levels. His representation however, has not yielded any result and therefore, he has approached this Tribunal seeking direction against the respondents to grant him promotion to the post in question with all consequential benefits from the date his juniors are promoted.
2. The respondents on the other hand in their reply have contended that the applicant was entitled to be considered for promotion and as such was duly considered by the DPC held in September, 2003. The DPC held in the UPSC on the basis of his ACRs assessed the applicant as unfit and did not include his name in the panel for promotion of JCIT. They have admitted that the remarks of the Reporting and the Reviewing Officers were not communicated to the applicant contending that it was not necessary to communicate such remarks when such remarks were not adverse. According to them, as per the DOPT's guidelines only the adverse remarks were required to be communicated. They have also contended that he was not promoted to the grade of JCIT as his grading of ACRs was below the bench mark 'very good'. The DPC has not found him fit for promotion on the basis of his ACRs and since as per the DOPT's guidelines only adverse remarks are to be communicated those remarks which were not adverse in his ACRs were not communicated to him. They have prayed that the O.A. be dismissed with costs.
3. We have heard the learned Counsel of both the parties and duly considered the rival contentions. At our direction, Mrs. Mona Bhatt, learned Counsel for the respondents has made available the minutes of the DPC as well as the ACR file of the applicant. We have carefully perused the same.
4. The reply of the respondents clearly indicates that the DPC was constituted in September, 2003 for promotions to the grade of Joint CIT for the vacancies pertaining to the year 2003-2004. It is also an admitted position that the DPC assessed all the candidates on the basis of ACRs of the last five years. The applicant has asserted that even though his performance was good all through out and he has not been communicated with any adverse remarks, he has been adjudged unfit by the DPC without proper consideration of his ACRs. Mr. Pathak, learned Counsel has submitted that since the applicant was not communicated with any adverse remarks or any remark which were below the bench mark of 'very good' it implied that his service record had been 'very good' and therefore, he could not have been declared unfit by the DPC. He has further submitted that if his performance was not coming to the level of 'very good' the respondents were required to communicate the remarks even if they were not adverse so that he can improve his performance and come to the expected levels. According to him it was not open to the DPC to consider those uncommunicated remarks and thereby assess him as unfit. Relying on the several decisions of the Supreme Court including that of celebrated case of U.P. Jal Nigam and Ors. v. Prabhat Chandra Jain and Ors. 1996 (33) ATC 217, High Courts and this Tribunal, he has submitted that non-communication of the down grading in the ACRs of the applicant has vitiated the selection proceedings and the applicant could not have been denied the selection on the basis of the ACRs which were though not adverse were not coming to the level of bench mark. He has asserted that those remarks were also required to be communicated and their non communication has vitiated the proceedings.
5. Mrs. Bhatt, learned Counsel for the respondents on the other hand has vehmently submitted that when a high level Committee has considered the respective merit of the candidates and assessed the ACRs, this Tribunal cannot sit over the assessment made by the DPC. According to her, on the basis of the ACRs, the DPC held in UPSC had held the applicant unfit and had not included his name in the select panel. The assessment made by the DPC cannot be questioned unless it is proved to be mala fide or is found to be based on inadmissible or irrelevant or insignificant material. Relying on the decision of the Full Bench of this Tribunal in Manik Chand v. Union of India 2002(3) ATJ 268 she has submitted that the down grading in the ACR is not required to be communicated to the concerned officer. She has also submitted that the ratio of the judgment in the case of U.P. Jal Nigam v. Prabhat Chandra Jainas well as other judgments cited by Mr. Pathak, learned Counsel for the applicant has no application to the facts of the instant case. The DPC is required to follow the DOPT' s guidelines and as per the guidelines, only adverse remarks were required to be communicated to the officer concerned. Since there were no adverse remarks in the ACR of the applicant, the same were not communicated to him. The DPC was however, fully justified in assessing the applicant on the basis of the ACRs of the last five years which disentitled him for further promotions.
6. Before we proceed to examine the rival contentions, we may point out that in the instant case, the ACR file of the applicant reveals the following grading given to him.
(Year) Reporting Officer Reviewing Officer1998-99 Outstanding Outstanding1999-00 Good Good2000-01 Very Good Very Good2001-02 Good Good 7. The perusal of the above grading in the ACR clearly indicates that the applicant had been graded 'outstanding' and 'Very good' in the years 1998-99,2000-01 and 2002-2003 but he has been graded as 'good' in 1999-00 and 2001-02. This indicates that there is perceptible steep fall in the grading for the years 1999-00 and 2001-02, Even if for the year 2001-2002 it may not be considered to be a steep fall in the grading as compared to the previous years of gracing of 'very good' in 2000-2001, it cannot be denied that so far the year 2000 is concerned, there is a steep fall in the grading compared to outstanding in the year 1998-99. The question therefore that arises is whether this down grading in his ACR for the year 1999-2000 was required to be communicated to the applicant or not and if it was required to be communicated, whether the DPC was justified in taking into consideration the remarks for the year 1999-2000 while assessing him as unfit for further promotion.
8. The confidential report of a Govt. servant is a mirror reflecting his performance and it is a general assessment of the work performed by the Govt. servant and serves as a data of comparative merit when question of promotion arises. The Supreme Court in the case of R.L.
Butail v. Union of India These rules abundantly show that a confidential report is intended to be a general assessment of work performed by a Govt. servant subordinate to the Reporting Authority, that such reports are maintained for the purpose of serving as data of comparative merit when questions of promotion, confirmation, etc., arise. They also show that such reports are not ordinarily to contain specific incidents upon which assessments are made except in cases where as a result of any specific incident a censure or a warning is issued and when such warning is by an order to be kept in the personal file of the Govt. servant. In such a case the officer making the order has to give a reasonable opportunity to the Govt. servant to present his case. The contention, therefore, that the adverse remarks did not contain specific instances and were, therefore, contrary to; the rules, cannot be sustained. Equally, unsustainable is the corollary that because of that omission the appellant could not make an adequate representation and therefore, the confidential reports are vitiated.Gurdial Singh Fijji v. State of Punjab and Ors. , the Supreme Court laid down that the principle is well settled that in accordance with the rules of natural justice, an adverse report in a confidential roll cannot be acted upon to deny promotional opportunities unless it is communicated to the person concerned so that he has an opportunity to improve his work and conduct or to explain the circumstances leading to the report. Such an opportunity is not an empty formality its object, partially, being to enable the superior authorities to decide on a consideration of the explanation offered by the person concerned, whether the adverse report is justified. The same view was expressed in the case of State of U.P.v. Yamuna Shanker Misra and Anr. 1997 SCC (L & S) 903 : 1997(2) SLJ 121 (SC) observing that 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 employee 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 accurately as possible, the statement of facts on overall assessment of the performance of the subordinate officer.
10. It cannot be denied that the adverse remarks are those remarks which reflect otherwise on the performance of an officer to the particular year and also have ah impeding effect in consideration for promotion to the next higher post. They are therefore, required to be communicated to the concerned officer to accord an opportunity to improve his performance. The communication also gives an opportunity to the officer to rebut the remarks and to persuade the authorities on production of relevant material to take a contrary view. However, when the remark is not to be treated as adverse and still the performance of the officer is not considered to be upto the level, the question arose as to whether the remark of the grading given in the particular ACR which falls short of benchmark should be treated as adverse and communicated or not. The Supreme Court in the case of U.P. Jal Nigam and Ors. v. Prabhat Chandra Jain and Ors. (supra) considering this aspect has observed as under: 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, when 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 to 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 emphasized 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. In the instant case we have seen the service record of the first respondent. No reason for the change is mentioned. The down grading is reflected by comparison. This cannot sustain.
11. This decision of the Supreme Court has subsequently been followed in many cases by different High Courts and the Tribunal. Mrs. Bhatt, learned Counsel for the respondents relaying on a Full Bench decision of this Tribunal at Mumbai in the case of Manik Chand v. Union of India and Ors. have vehemently submitted that the Full Bench has ruled that it is not necessary to communicate the remarks which are below the benchmark prescribed for promotion in respect of a selection post.
According to her, in view of this Full Bench decision the downgrading in the ACRs of the applicant were not required to be communicated to him and the DPC was justified in taking into consideration those remarks also. The Full Bench in Manik Chand's case also had relied upon U.P. Jal Nigam 's case and ruled that it is not necessary to communicate the remarks which are below the benchmark prescribed for promotion in respect of selection post and added that there was no quarrel for communication of those gradings/remarks which had been downgraded or there had been a steep fall in the light of U.P. Jal Nigam's case. The relevant observation of the Full Bench is as follows: Further, whether a good positive entry is adverse or not, comes to light only when a meeting of the DPC takes place and independent assessment is made by the DPC. If such grading arrived at DPC, were to be communicated to the concerned Govt. servant perhaps, no purpose would be served except to bring it to the knowledge of the concerned person, because the entries in all the five ACRs which were considered by the DPC will have to be communicated, if they are treated as adverse. Even though they may not be adverse in the strict sense.
Therefore, the Govt. servant cannot be expected to improve his performance during the previous four years, if informed after a period of five years. The improvement can come about only for the year immediately preceding the year when the meeting is held. Therefore, conveying of the remarks for improving the performance for promotion may not serve the purpose because the assessment by the DPC is not to be communicated.
12. The Full Bench in that case was considering the question of communication of the grading by the DPC but where the ACRs shows the down grading in the report themselves the communication of the same cannot be denied. Down grading in the ACR and down grading of ACRs are two different concepts. In the former, where the reporting officer gives a higher grading but the Reviewing Officer tones it down to a lower grading, it would be a down grading in the ACRs, whereas in the latter grading of a particular year of 'very good' and grading of 'good' in the preceding year would be in common parlance down grading of a confidential report. The Bombay High Court in the case of Dr.
Binoy Gupta v. Union of India and Ors. 2002(3) ATJ 7 was also concerned with the same question where there was downgrading of the Annual Confidential Report. Therein also after earning outstanding report Dr.
Binoy Gupta was downgraded to 'Good' in the next year and the remarks had not been communicated. The Bombay High Court relying on the decision of U.P. Jal Nigam held as under: In the light of the decision of the Supreme Court we find that non-selection of the petitioner for promotion to the post of Chief Commissioner on the basis of the ACR where communication of down grading has not been made vitiate the proceedings. Therefore, we direct the respondents to convene a review DPC and reconsider the case of the petitioner ignoring the ACRs for 1995-96 and also ACR of 1996-97 and 1998-99 and if he is found suitable, give him promotion from the date from which other officers who were promoted on the recommendations of the DPC.Rajinder Kumar v. Union of India and Ors. 91 (2001) DLT 170 : 2002(1) SLJ 446 (SC). In another case of Union of India v. R. K. Anand in CWP No.1386/2002 the Delhi High Court referring to the question of down grading observed as under: The respondents herein had received good for one year. The Tribunal following the decision for the Apex Court in U.P. Jal Nigam v. Prabhat Chandra Jain AIR 1996 SC 1161 had held that in the event a bench mark very good is fixed the ACR should have been communicated to the respondents herein. We do not find any infirmity in the judgment of the Tribunal. Be it recorded that the same view has been taken by a Division Bench of this Court in Union of India and Anr.
v. B.L. Srivastava and Ors. (Civil Writ Petition No. 715/2001) disposed of on 2nd February, 2001.
14. Another Full Bench of this Tribunal in the case of A.K. Dawar v.Union of India O.A. 555/2001 in the Principal Bench, while considering all the previous judgments of the Tribunal as well as High Courts and the Supreme Court has opined that downgrading in the ACR requires to be communicated to the concerned officer. It however laid down that in case there is no down grading of the concerned persons in the annual confidential report the grading of 'good' given to the Govt. employee irrespective of the benchmark for the next promotion being 'very good' need not be communicated or to be treated as adverse. We also note that a Division Bench of this Tribunal at Mumbai in O.A. 782/2003 in the case of Dr. B. V. Prasad Reddy v. Union of India and Ors. decided on 8.4.2004 has also expressed the same view that down grading in the ACR requires to be communicated before the same can be considered by the DPC. The Division Bench has also noted that the decision of the Hon'ble Bombay High Court in the case of Dr. Binoy Gupta v. Union of India and Ors.' case has been upheld by the Supreme Court in SLP filed by the respondents and that this decision of the Bombay High Court has been implemented by the same Income Tax Department.
15. For the aforesaid reasons and in view of the well settled position of law that the downgrading in the ACR of an officer is required to be communicated to him before the same can be considered for his further promotion or confirmation, since in the instant case, we find that for the year 1999-2000 there was a steep fall in the grading of the applicant compared to the previous year of 1998-99 the applicant was required to be communicated the same. Since the same were not communicated to him the DPC was not justified in not ignoring the same.
This has clearly vitiated the DPC proceedings so far the applicant's case is concerned.
16. In view of the above discussions, we direct the respondents to convene a review DPC to reconsider the case of the applicant by ignoring his ACRs for the year 1999-2000 and considering an ACR of an earlier year if required, and if found suitable, grant him promotion from the date from which his immediate junior has been promoted. This exercise shall be completed within a period of three months from the date of receipt of a copy of this order. The O.A. stands disposed of with this direction. No order as to costs.