Vijender Jain, J.
1. This letters patent appeal has been filed against the order passed by the learned Single Judge in CWP No.1774/97 decided on 29th April, 1997. Col.Digamber Singh, learned counsel for the appellant has contended that the learned Single Judge has not adverted to the fact that on account of Confidential Report initiated in CFL, Delhi for 1988-89 and 1989-90 in which due to subjective assessment on account of petitioner's uprightness, not towing the line of action with the Commanding Officer, the petitioner was given lukewarm ACR in revenge. It was contended that the Selection Board acted in violation of the well-settled law laid down by the Supreme Court that selection Boards will not take cognizance of any uncommunicated adverse remarks which disturbed the overall record of the service of the petitioner and the objective assessment for selection to the post of Lt. Colonel. Learned Single Judge dismissed the writ petition simply by observing that the statutory complaint was considered and rejected without adverting to the aforesaid argument of the petitioner. In the writ petition the petitioner prayed, inter alia, for the following writs :
(a) Issue a Writ of Mandamus to respondent to promote the petitioner restoring his inter se seniority.
(b) Issue writ of certiorari setting aside the proceedings of selection Boards which assessed the petitioner for the selection grade Lt.Col. In August, 1995, Aug. 96 and Nov.96 and issue a writ of mandamus to the respondents that in the alternative the petitioner be assessed afresh by selection board taking into consideration his all ACRs up-to date.
(c) Issue Writ of Mandamus to Respondent no.2 that ACRs for the period 1988 and 1989-90 be set aside.
2. Learned counsel for the appellant has also contended that recording of ACR giving lower grading than what the appellant was getting, would amount to adverse entry of which notice was a must. He also relied upon a letter/circular of the respondent dated 21st August, 1989 dealing with communication of adverse and advisory remarks in the confidential reports. The relevant paras are as under :
'...... It is reiterated that 'Performance Counseling' is a continuous process and thereforee, the ratee must be given appropriate 'guidance for improvement' as and when a weakness is noticed. Only when an officer fails to show the desired improvement, the adverse/advisory remarks should be included in his confidential report, so that cognizance is taken of his weakness while planning his future .....
It is pertinent to highlight that the purpose of reflection and communication of adverse remarks is three fold viz. apprise the ratee that due cognizance of his weakness (s) has been taken, to bring his weakness to the notice of management and give him an opportunity to seek redress if he feels aggrieved due to adverse remarks. To this end and in the interest of creditability of the 'Appraisal system'.. It is imperative that the entire pen picture (less box grading) and details of 'verbal and written guidance for improvement' are communicated to the ratee.'
3. It was contended before us that the assessment of the appellant in his ACR for 1988-89 and 1989-90 was done by the same reporting officer and the appellant has been down graded from earlier ACR of thirteen years. This has been done without assigning any reason and communication of any weak or adverse remark to the appellant. The down grading of ACR of the appellant has acted adversely in case of the appellant as he has not been approved for promotion to the rank of Lt. Colonel.
4. Counsel for the petitioner contended that if the ACR of 1988-89 and 1989-90 are not taken into consideration for his promotion to the post of Lt. Colonel, then there is no other ground for the respondent not to promote the petitioner. In support of his contention, counsel for the petitioner has relied upon Gurdial Singh Fijji v. The State of Punjab & Ors. 1979 (1) SLR 804 and U.P. Jal Nigam & Ors. Vs . Prabhat Chandra Jain & Ors. : [1996]1SCR1118 where Court observed as under:
'We need to explain these observations of the High Court. The Nigam has rules, whereunder an adverse entry is required to be communicated to the employee concerned, but not downgrading of an entry. It has been urged on behalf of the Nigam that when the nature of the entry does not reflect any adverseness that is not required to be communicated. As we view it the extreme illustration given by the High Court may reflect an adverse element compulsorily communicable, but if the graded entry is of going a step down like falling from 'very good' to 'good' that may not ordinarily be an adverse entry since both are a positive grading. All that is required by the authority recording confidentials in the situation is to record reasons for such downgrading on the personal file of the officer concerned, and inform him of the change in the form of an advice. If the variation warranted be not permissible, then the very purpose of writing annual confidential reports would be frustrated. Having achieved an optimum level the employee on his part may slacken in his work, relaxing secure by his one-time achievement. This would be an undesirable situation. All the same the sting of adverseness must, in all events, not be reflected in such variations, as otherwise they shall be communicated as such. It may be emphasised that even a positive confidential entry in a given case can perilously be adverse and to say that an adverse entry should always be qualitatively damaging may not be true. In the instant case we have seen the service record of the first respondent. No reason for the change is mentioned. The downgrading is reflected by comparison. This cannot sustain. Having explained in this manner the case of the first respondent and the system that should prevail in the Jal Nigam, we do not find any difficulty in accepting the ultimate result arrived at by the High Court.'
5. Counsel for the petitioner has further relied upon Baidyanath Mahapatra v. State of Orissa & Anr. 1989 (4) SLR 220, which is however, off the issue before us. Counsel for the petitioner also relied upon Rajinder Singh Sehrawat Vs . Union of India & Ors. : 93(2001)DLT417 , a Division Bench judgment of this Court to the following effect :-
'At the outset, we must make it clear that this Court cannot moderate the appraisal and grading given to an officer/employee. While exercising power of judicial review, Court should not venture to assess and appraise on the grading of an officer/employee. But if the Court finds that adverse entries made in the ACR or grading given to an officer/employee are vitiated by extraneous considerations, the Court must interfere and quash them. It is essential to maintain the integrity and sanctity of the ACR of an officer/employee and the legitimacy of the conclusions relating to his/her overall performance. In this context, we may mention that the object of writing confidential reports or character roll of a Government servant is to afford an opportunity to the officer concerned to remove his deficiencies, if any, to inculcate discipline and to improve quality, excellence and efficiency of public service. The officer writing the confidential report should show objectivity, impartiality and fair assessment without any prejudices whatsoever with the highest sense of responsibility to inculcate devotion to duty, honesty and integrity to improve excellence of the individual officer/employee...'
6. On the basis of the aforesaid authorities learned counsel for the petitioner contended that the entries for the year 1989-90 were adverse as the petitioner was down graded from '7' to '6'. Although, petitioner has been getting '8' in all the subsequent years under consideration and even during the preceding year 1988-89 the petitioner had been graded '7'. It was contended that as per the rules for promotion to the post of Lt. Col. nine years ACR has to be seen. Grading from '7' to '6' has the effect of adversely affecting the career of the petitioner for promotion to the rank of Lt. Col. and as the down-grading amounted to reflecting adversely, the same ought to have been communicated to the appellant.
7. On the other hand, counsel for the respondent Ms.Rekha Palli has contended that grant of 7 points for the year 1989 and below does not amount to adverse assessment. As a matter of fact, it is an above average assessment. Learned counsel for the respondent has contended in the alternative that non-communication of downgrading/adverse remarks do not render ACR technically invalid. It was contended that assessment of the reporting officer in the ACR of 1988-89 and 1989-90 was in tune with overall performance of the appellant. Counsel for the respondent relied upon Air Vice Marshal S.L. Chhabra VSM (Retd) Vs . Union of India : (1993)IILLJ658SC , where the Court observed as under :
' It is well-known that a Selection Board, while considering the suitability of an officer for promotion to a higher post or rank, takes into consideration several factors it is not solely based on the Appraisal Report of the controlling officer. The learned Additional Solicitor General produced the proceedings of the Selection Board of 1987 and pointed out that the Selection Board had postponed the promotion of the appellant on the ground, that only one report was available by that time and as such decision was taken to watch the performance of the appellant at least for a year more, to assess his potentiality and suitability for discharging the higher responsibility attached to the rank of Air Vice Marshal. The aforesaid fact has been mentioned in the proceedings of the Selection Board of the year 1987. In such a situation, it was neither possible for the High Court, nor is possible for this Court to act as a Court of appeal against the decision of the Selection Board, which has been vested with the power of selection of an officer for being promoted to the rank of Air Vice Marshal. No oblique motive has been suggested on behalf of the appellant against any of the members of the Selection Board and there is no reason or occasion for us to infer such motive on the part of the members of the Selection Board for denying the promotion to the appellant with reference to the year 1987. Public interest should be the primary consideration of all Selection Boards, constituted for selecting candidates, for promotion to the higher posts, but it is all the more important in respect of Selection Boards, meant for selecting officers for higher posts in the Indian Air Force. The Court cannot encroach over this power, by substituting its own view and opinion. According to us, there is no scope to interfere with the decision of the Selection Board of 1987, merely on the ground that adverse remarks, in the Appraisal Report of 1986, which were placed before the Selection Board in the year 1987, were later expunged.'
8. In support of her arguments Ms.Palli further relied upon State of Bihar & Anr. etc. etc. Vs . Shri P.P. Sharma & Anr. etc. etc. : 1991CriLJ1438 . Ms.Palli placed further reliance on The Chief of the Army Staff & Ors. v. Havildar Sedu Ram & Anr. (LPA 456/99), a Division Bench judgment of this Court decided on 21st May, 2001, where it was observed :-
'The assessment/evaluation of service performance was likely to differ at times depending upon the relative perception and judgment of the Assessing Authorities. There is no cut and dry formula which could be applied to rate and measure such performance in exact terms. An initiating authority may sometimes grade the performance/conduct etc. higher that the Reviewing Authority or vice versa. All this is a part of the process. So long as a Reviewing Authority enjoys the power to vary/review the grading/rating, it cannot be said or held that his action was necessarily motivated or arbitratry.'
9. Ms.Palli further contended that even if the petitioner obtained '8' points from 1992-93 till May, 1998, even then the case of the petitioner cannot be considered and in that connection she cited Amrik Singh Vs . Union of India : (2001)10SCC424 .
10. We have given our careful consideration to the arguments advanced by learned counsel for both the parties. At the outset we would like to mention that we have called for the records of the case and perused the ACR. A very short affidavit was filed by the respondent without specifying as to what were the parameters which were taken into consideration for recording the ACR for 1988-89 as '7' and for 1989-90 as '6'. It was admitted by the respondent that the relevant ACRs for the purposes of promotion to the post of Lt. Col. would be 1988-89 till 1996-97. The same is as under :
Year I.O. R.O. S.R.O. F.T.O. S.T.O.
1988-1989 (Jun) (May) 7 7 7 7
1989-1990 6 6 6
1990-1991
NIR
(Non Initiation Report)
1991-1992 8 8 7
1992-1993 8 7 1992-1993 8 7 -
1993-1994 8 8
1994-1995 8 8 8
1995-1996 8 8 1995-1996 8 8
1996-1997 8 8 8
(Feb) (14 Jun)
11. The only question which has to be considered in the circumstances is as to whether the ACR for the years 1988-89 and 1989-90 were adverse entries to which the principle of audi alteram partem will be applicable or respondent was under no obligation to communicate the same on the ground that the same was above average and there was no need to communicate the same.
12. Counsel for the petitioner further relied upon State of U.P. Vs . Yamuna Shanker Misra & Anr. : (1997)IILLJ1SC , where Supreme Court observed as under :
'It would, thus, be clear that the object of writing the confidential reports and making entries in the character rolls is to give an opportunity to a public servant to improve excellence. Article 51-A(j) enjoins upon every citizen the primary duty to constantly endeavor 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 and dispassionately while giving, as accurately as possible, the statement of facts on an overall assessment of the performance of the subordinate officer. It should be founded upon facts or circumstances. Though sometimes, it may not be part of the record, but the conduct, reputation and character acquire public knowledge or notoriety and may be within his knowledge. Before forming an opinion to be adverse, the reporting officers writing confidentials should share the information which is not a part of the record with the officer concerned, have the information confronted by the officer and then make it part of the record. This amounts to an opportunity given to the erring/corrupt officer to correct the errors of the judgment, conduct, behavior, integrity or conduct/corrupt proclivity. If, despite being given such an opportunity, the officer fails to perform the duty, correct his conduct or improve himself, necessarily the same may be recorded in the confidential reports and a copy thereof supplied to the affected officer so that he will have an opportunity to know the remarks made against him. If he feels aggrieved, it would be open to him to have it corrected by appropriate redressal. Thereby, honesty, integrity, good conduct and efficiency get improved in the performance of public duties and standard of excellence in services constantly rises to higher levels and it becomes a successful tool to manage the services with officers of integrity, honesty, efficiency and devotion.'
13. From the catena of cases cited above it emerges that when an entry reflects an adverse element, it may not amount to an adverse entry in the strict sense of the term since both may be positive grading but as observed in U.P. Jal Nigam's case (supra) that the authority recording confidential in such a situation must record reasons for such downgrading on the personal file of the officer concerned and inform him of the change in the form of an advice. In the instant case the entries as recorded in the ACR of the appellant for 1988-89 and 1989-90 had an adverse element and if it is so, then in terms of respondent's letter dated 21.8.1989 the appellant ought to have been informed for performance counselling as performance counselling is a continuous process. The ratee must be given an appropriate guidance and opportunity for him as and when his weakness is noticed. The appellant has taken the plea in the writ petition originally filed that these downgrading was on account of appellant serving at CFL, Delhi from the period 1987 to January 1990 as BIO. The reports written about the appellant were subjective and prejudiced. A non-technical officer working more efficiently than technical officer could not be digested by the then commanding officer and in this regard a statutory complaint was also filed where the appellant has highlighted that prior to the posting of the appellant in CFL, Delhi, a CBI inquiry for investigation of charges against four officers of the unit was conducted. A staff court of inquiry was subsequently convened during 1988 to investigate the charges of fraud against these officers and in view of these circumstances the appellant was posted in this unit where one Col. P.J. Cherian of the Food Inspection Cadre was the commanding officer and he resented the idea of amalgamation of Food Inspection Cadre with ASC mainstream unit. After the posting out of Col. P.J. Cherian, Lt. Col. B.P. Chaturvedi who was also in Food Inspection Cadre, was the second-in-command, took over as officiating Commanding Officer in April, 1988. The said officer used to show disregard to the status of all general cadre Army Service Corps Officers who were posted as Bulk Inspection Officers in the CFL as he used to openly declare that for him all Bulk Inspection officer were equal to Junior Commissioned Officers. Against the treatment meted to him, the appellant reported to Lt. Gen. Gorakh Nath AVSM, PVSM and another officer Major Amar Singh during their visit to the unit in Oct. 1988. Thereafter Col. J.P. Bajpai of the Food Inspection Cadre was posted to CFL in May, 1989 as commanding officer. These officers refused the entry of the appellant into the Laboratory. The entry of remarks on the Inspection report was highly disliked by Col. J.P. Bajpai and as appellant did not agree with Col. J.P. Bajpai, the ACRs of the appellant were downgraded.
14. The statutory complaint of the appellant was also rejected. No reason was assigned for rejection of the complaint. The decision in S.L. Chhabra (supra) cited by learned counsel for the respondent is not applicable to the facts of the present case in view of the law laid down by the Supreme Court in Gurdial Singh Fijji's case (supra), U.P. Jal Nigam's case (supra) and Baidyanath Mahapatra's case (supra). Similarly in Chief of Army Staff v. Havildar Sedu Ram (supra), the Division Bench of this Court observed that there was no cut and dry formula which could be applied to rate and measure the performance in exact terms. The case cited by the learned counsel for the respondent on Amrik Singh's case (supra) is distinguishable from the facts and circumstances of this case as in that case the High Court has not quashed the adverse entry for the year 1985-86 as the High Court had only directed that the appellant therein should be considered along with members of the batch of 1990. High Court had not given any direction to exclude the adverse remark and, thereforee, the adverse remarks stood in the way of appellant getting promotion as was held by the Supreme Court in that case.
15. From the aforesaid discussion it is clear that although this Court cannot moderate the appraisal and grading given to an officer while exercising the power of judicial review, but if the ACR for the year 1989-90 has an element of adverse reflection and for that purpose the appellant has been denied his promotion, then that ACR ought to have been communicated to the appellant which has not been done in the present case. In spite of the fact that a detailed statutory complaint was filed and reasons given by the appellant to the authorities, the same was summarily dismissed without assigning any reason. The sting of adverseness must, in all events although may not be reflected in variations of correctness but the same has perilously affected and damaged the career of the appellant.
16. We quash the entry of 1989-90 in the CR of the petitioner. The case is remanded back to the respondent for reconsideration for promotion to the post of Lt. Col. This exercise be done within a period of two months from the date of the order.
17. Appeal is allowed in terms of aforesaid order.