Sri Rabindra Nath Kalita Vs. the State of Assam. - Court Judgment

Excerpt:
repeal and saving [j.p. devadhar; r.m. savant, jj] if the adjudicating officer fails to take notice of the alleged contravention of fera on or before 31/05/2002, then proceedings in respect of such contravention of fera cannot be continued under fema. in the present case, the show cause notice dated 31/05/2002 is the first stage notice under rule 3(1) of the appeal rules. the said notice was issued on 05/06/2002 and served on 06/06/2002 giving the petitioners 10 days notice. in the present case the notice dated 31/05/2002 being the first notice, the adjudicating officer could not take notice or form an opinion on 3105/2002 and, therefore, the adjudicating officer had no jurisdiction to proceed further since he did not take notice within the period of two years from the repeal of fera.....01. these two appeals carry a challenge to the judgment and order dated 14. 12. 2007, passed in wp(c) no. 4934/2006. thereby the moderation of the grading of the respondent no. 1 herein in his annual confidential reports (for short hereafter referred to as the acr) for the period from 01. 04. 2004 to 24. 06. 2004 and 28. 07. 2004 to 17. 02. 2005 from "outstanding" to "very good" and "good" respectively, was interfered with and the state respondents were directed to reassess his case for promotion to the post of superintending engineer in the public works department of the state (hereafter for short referred to as the department) by treating the remarks of the reviewing authority for the said periods to be the bench mark of appraisal. further, a direction to effect his promotion, if.....

Judgment:
01. These two appeals carry a challenge to the judgment and order dated 14. 12. 2007, passed in WP(C) No. 4934/2006. Thereby the moderation of the grading of the respondent No. 1 herein in his Annual Confidential Reports (for short hereafter referred to as the ACR) for the period from 01. 04. 2004 to 24. 06. 2004 and 28. 07. 2004 to 17. 02. 2005 from "Outstanding" to "Very good" and "Good" respectively, was interfered with and the State respondents were directed to reassess his case for promotion to the post of Superintending Engineer in the Public Works Department of the State (hereafter for short referred to as the Department) by treating the remarks of the reviewing authority for the said periods to be the bench mark of appraisal. Further, a direction to effect his promotion, if adjudged fit and eligible from the date of those made pursuant to the recommendations of the Selection Committee dated 28. 07. 2006, was also made. The respondent No. 1, incidentally, was the writ petitioner in the aforementioned proceeding, which was disposed of along with four other writ petitions on analogous issues surfacing from the same selection.

02. Whereas, the appellants in WA No. 44/2008 are the official respondents in WP(C) No. 4934/2006, the appellants in WA No. 54/2008 are the respondent Nos. 4, 5, 6, 7, 9, 10, 11 and 12 therein. The respondent No. 3 & 8, however, have figured as proforma respondents in this appeal. These appellants, however, did not offer their counter in the writ proceeding.

03. We have heard Mr. AM Mazumdar, Senior Advocate assisted by Mr. S Saikia, Advocate for the appellants in WA No. 44/2008 and Mr. PK Goswami, Senior Advocate assisted by Mr. J Roy, Advocate for the respondent No. 1 in WA No. 44/2008. Mr. U Raj Saikia, Advocate represented the appellants in WA No. 54/2008.

04. The pleaded narration of the facts in short would be essential to outline the backdrop for adequate analysis of the rival arguments. As observed hereinabove, the issue relates to promotion to the post of Superintending Engineer in the department, for which the feeder post is that of Executive Engineer.

The respondent No. 1/writ petitioner has introduced himself to be a brilliant officer with excellent proven track record and a slew of meritorious performances to his credit. He had joined the Department as Assistant Engineer in the year 1983 and rose to that of the Executive Engineer in 2002 and, therefore, at the institution of the writ proceeding, had completed more than 23 years of unblemished service. The method of recruitment and the conditions of service of the Department are governed by a set of rules, nomenclatured as Assam Engineering (PWD) Rules, 1978 (for short hereafter referred to as the Rules). Rule 13 thereof, portrays the mode for promotion to various ranks including that of the Superintending Engineer. Amendment hereto was occasioned by the Assam Engineering (Public Works Department) Amended Service Rules, 1983. Where under, promotion upto the rank of Superintending Engineer was to be caused on the basis of merit and suitability with due record to seniority. The procedure for writing the confidential reports and the review and acceptance thereof is enjoined by the Assam Service (Confidential) Roll Rules, 1990 (for short hereafter referred to as the 1990 Rules). Both these rules have been framed in exercise of powers conferred by the proviso to Article 309 of the Constitution of India. For the promotion, in question, the Selection Board/Committee constituted under the Rules met on 28. 07. 2006 and to fill up the probable vacancies to 20 posts of Superintending Engineer recommended, according to the respondent No. 1/writ petitioner, 28 officers, though it was supposed to recommend 40 i. e. double the number vacancies in terms of the Rules. As per the notification dated 28. 04. 2003, issued by the Department, the norms for promotion up to the rank of Superintending Engineer and above were prescribed in supplementation of the Rules. The relevant portions therefrom pertaining to the promotion to the rank of Superintending Engineer are extracted hereinbelow for immediate reference:-

"Promotion up to the rank of Superintending Engineer: Merit and suitability with due regard to

seniority: The appointing authority will allocate the following points to the canal accepted remarks in the ACRs in case of merit and category 3 shall not be eligible to be suitable for promotion in case of merit and suitability.

Below Average = 0 point

Average= 1 point

Good= 2 point

Very Good= 3 points

Outstanding= 4 points

(c) Promotion from EE to SE

There will be 3 categories

Category1 = 18 and above

Category2 = 10 to below 18

Category 3 = below 10

Category3 = shall not be eligible to be suitable

for promotion

Category 1 and 2 shall be eligible to be suitable for promotion

In pursuant to aforesaid Judgment 75% points

shall be allocated for merit and remaining 25% for seniority. An officer shall obtain maximum 20 points on merit which is equivalent to 75% and 25% points for seniority shall be equivalent to 6. 66 points. Officer having completed service of 30 years or above shall be entitled to 6. 66 points and for each completed year of service 0. 22 points shall be allocated.

According to it a total points the officers shall be categorized to two classes

1) Class - A

2) Class - B

(c) Promotion from EE to SE

Class - A = 21. 96 and above

Class - B = 13. 96 to below 21. 96

Class - A will get preference over Class-B

and Inter-se seniority within Class-A will

remain unchanged"

05. This criteria, as the notification reveals, was pursuant to the judgment and order dated 17. 04. 2003 of this Court in WP(C) No. 6274/2002 and WP(C) No. 6606/2002. As would be apparent from hereinabove, an officer for the assessment of his merit would be awarded, inter alia, 3 points for "Very Good" and 4 points for "Outstanding" gradings. Having regard to the apportionment of marks for merit and seniority at the ratio of 75:25, an officer can be allocated a maximum of 20 points on merit and 6. 66 points on seniority. An officer, who had completed service of 30 years or above, would be entitled to 6. 66 points for seniority and for each completed years of service, 22 points would be awarded. For promotion to the rank of Superintending Engineer an officer securing 21. 96 points and above, would be empanelled in Class-A and those between the 13. 96 and 21. 96 in Class-B. In terms of the norms, the officers enlisted in Class-A, would enjoy a preference over those in Class-B and their interse seniority within Class-A would remain unchanged. Any officer failing to secure marks to be included in Class-B, would be adjudged unsuitable for promotion.

06. For the assessment of merit, the ACRs for the period from 2000- 2001, 2001-2002, 2002-2003, 2003-2004 and 2004-2005 were to be taken note of for the promotion to the 20 vacancies in the rank of Superintending Engineer for the 2006. The grievance of the respondent No. 1/writ petitioner, as highlighted in his writ petition, is that, though on the basis of his consistent superlative performance for all the relevant years he was entitled to be categorized in Class-A as per the criteria formulated, he was not recommended on irrelevant considerations to favour a selected few, inter alia, the respondent No. 3 in his writ petition. He imputed bias and mala fide to the then Secretary, Government of Assam, Public Works Department for having intentionally and arbitrarily manipulated the gradings of the reporting and reviewing officer in his relevant ACRs, so as to deliberately mar his prospects for such promotion. The respondent No. 1 asserted that in his ACR for the period 2000 to 2003 he was awarded "Outstanding" and that his grading must have been down graded there from to "Good" for the remaining two years to deny him the promotion. This he deduced from the computations on the basis of the marks to be awarded for the different gradings as well as seniority, his score with 3 "Outstanding" gradings for 2000-2003 would have been 17. 06. While contending that having regard to the quality of service rendered by him also for the period of 2003-2004 and 2004-2005, in course whereof he had shouldered higher responsibilities in executing various projects of the Department for which he was awarded "Outstanding" by the reporting as well as the reviewing authority, the respondent No. 1/writ petitioner has alleged purposeful and whimsical lowering of his grade by the accepting authority on collateral considerations in order to accommodate the respondent No. 3 (in WP(C) No. 4934/2006) against whom, admittedly, at that point of time not only a departmental proceeding was pending, but sanction as well, for his criminal prosecution had also been sought for. Pleading apparent violations of the relevant provisions of both the Rules, the respondent No. 1/writ petitioner asserted that by no means, having regard to the quality of service rendered by him for the period, in question, he could have been assessed lower than "Very good" in his ACRs fo 2003-2004 and 2004-2005 by the accepting authority.

07. The official respondents while denying the allegation of the infringement of the Rules, bias and mala fide, had endorsed the validity of the selection process. According to them, the Selection Board, under the Rules, duly conducted the exercise in terms of the relevant provisions thereof as well as the administrative norms contained in the notification dated 28. 04. 2003 and recommended 39 candidates in order of merit for promotion for the 20 vacancies in the post of Superintending Engineer, while closeted their views in respect of one in a sealed cover. According to them, the accepting authority recorded his assessment in the concerned ACRs of the respondent No. 1/writ petitioner and as those were not adverse, it was considered inessential to convey the same to him. While clarifying that the case of the respondent No. 1/writ petitioner along with 79 other eligible officers were forwarded to the Selection Board along with all necessary documents and records for consideration for the promotions to the post involved, the answering respondents asserted that on a comparative assessment of merit, he could not make the desired mark to be accommodated against the number of vacancies sought to be filled up. They, however, disclosed that the views of the Selection Committee vis-a-vis the respondent No. 3 were kept in a sealed cover due to the pendency of a departmental proceeding against him. The appellants denied the respondent No. 1's claim of having secured "Outstanding" gradings till 2005 and vouched for the view expressed by the Secretary of the Department as the accepting authority on the basis of his knowledge and experience of field works of the concerned engineers. They avowed compliance of the provisions of the 1990 Rules in the preparation of the ACRs of the respondent No. 1 at all levels and dismissed his challenge as untenable.

08. The respondent No. 1/writ petitioner in his affidavit-in-reply, reiterated and reaffirmed his averments in the writ petition and catalogued in details the services rendered by him in different capacities in a bid to buttress his claim of consistent superb performance rendering him worthy of being graded as "Outstanding" throughout. As observed hereinabove, the appellants in WA No. 54/2008 did not offer their pleadings.

09. The learned Single Judge with reference to the issues raised in the writ proceeding involved, noticed that though the respondent No. 1/writ petitioner was graded as "Outstanding" in his ACR for the period ending March, 2004 (14. 07. 2003 to 29. 12. 2003) as well as the year ending from March, 2005 (01. 04. 2004 to 26. 04. 2004 and 28. 07. 2004 to 17. 02. 2004) by the reporting and reviewing authorities, the accepting authority had lowered his grading to that of "Very good" and "Good", respectively, for the said periods by recording that there was no outstanding performance of his to justify the gradings awarded by the reporting and the reviewing authorities. In this context, the learned Single Judge recorded that the varying gradings of "Very good" and "Good" for the two periods pertain to works performed by the respondent No. 1/writ petitioner, which were substantially the same. Reflecting that the role and responsibility of each of the authorities involved in the preparation and finalisation of the ACR of the subordinate officer is to be informed with the considerations of administrative efficiency and the moral of the personnel engaged, the necessity of discharging the same with a high degree of accountability was underlined. After a detailed survey of the judicial pronouncements on the topic, the necessity for recording good and sufficient reasons in the personal file of the officer as the justification for the downgrading was accented upon. While acknowledging the power of the accepting authority to differ from the appraisal made by the reporting and the reviewing authorities, the learned Single Judge observed that in the case of the respondent No. 1/writ petitioner, the records, in original, did not reveal any reasoned endorsement for the lower grading awarded to him by the accepting authority. The assessment of "Very good" and "Good" of the respondent No. 1/writ petitioner for the two periods involved, arrived at on the same materials, was held to be lacking in objectivity and a dispassionate consideration. While interfering with the lower gradings awarded to the respondent No. 1/writ petitioner by the accepting authority, the learned Single Judge took note of the fact that meanwhile he (accepting authority) had retired and declared that the gradings awarded by the reviewing officer would be treated as final in terms of Rule 8(2) (ii) of the 1990 Rules. The consequential direction, also noticing that meanwhile four posts of Superintending Engineer had been kept vacant in deference to the interim orders of this Court for reassessment of the cases of the officers concerned including the respondent No. 1/writ petitioner and their promotion, if found fit and eligible from such dates on and from which other promotions were made pursuant to the recommendations of the Selection Committee, dated 28. 07. 2006 was issued. While observing that in undertaking the process as ordered, the promotion of the private respondents in the writ proceedings will have to be disturbed, if required, a time frame of 90 days was provided to complete the same.

10. Mr. Mazumdar, has persuasively argued that the assessment of the respondent No. 1/writ petitioner by the accepting authority under the 1990 Rules having been made on an objective consideration of the available materials for the relevant period, the finding to the contrary is unsustainable in law and is liable to be interfered with. As the accepting authority under the aforesaid Rules is empowered to differ from the evaluations made by the reporting as well as the reviewing authority, absence of detailed reasons, per se, did not vitiate the down grading of the respondent No. 1/writ petitioner, he urged. The learned Senior Counsel submitted that the ACRs of the respondent No. 1 for the terms 01. 04. 2003 to 13. 07. 203 and 01. 01. 2004 to 31. 03. 2004 were not available and that there is no record of receipt of the same by the Department and thus could not be placed before the Selection Board. He, however, sought a little more time to ascertain the existence thereof. Without prejudice to the above, the learned Senior Counsel assertively contended that a bare perusal of the ACRs of the respondent No. 1/writ petitioner placed with the Selection Board would demonstrate obvious application of mind by the accepting authority in registering his final grading and that as his case was duly considered for promotion on the basis of the Rules and the relevant administrative norms, his challenge ought to have been negated. Mr. Mazumdar sought to distinguish the decision of this Court rendered in The State of Assam and Anr. v. Pradyut Kumar Choudhury & Ors. , 2009 (2) GLR 834.

11. In response to the above, Mr. Goswami, has urged that in the face of the overwhelming materials attesting the respondent No. 1/writ petitioner's performance for the relevant period to be "Outstanding", thereby earning him a certificate of appreciation from the Department, the gradings awarded to him by the accepting authority, therefore, are on their face, flawed being uninformed with relevance and reason. While admitting that the factum of non availability of the respondent No. 1/writ petitioner's ACRs for the period from 01. 04. 2003 to 13. 07. 2003 and 01. 01. 2004 to 31. 03. 2004 did not surface in course of the adjudication before the learned Single Judge, the learned Senior Counsel has insistently dismissed the plea for time on behalf of the State respondents to ascertain the whereabouts thereof. Referring to the official communications appended to the additional affidavit filed by the respondent No. 1/writ petitioner in the appeal, Mr. Goswami has maintained that the same would conspicuously evince that his ACRs for the aforementioned two terms were duly received by the Department, but were deliberately withheld from the Selection Board. While endorsing the findings of the learned Single Judge in support of the interference with the lowered gradings of the respondent No. 1/writ petitioner by the accepting authority, he has urged that the decision rendered in Pradyut Kumar Choudhury & Ors. (Supra), applies in all fours to the facts of the present case. Contending that in terms of Rule 9 of the 1990 Rules, the concerned authorities are under a legal obligation to secure the ACRs in safe custody, Mr. Goswami has further indicated that the claim of the respondent No. 1/writ petitioner of having been awarded "Outstanding" gradings by the reporting as well as the reviewing authority for the aforementioned two periods, have remained unrefuted by the State respondents. In all, the learned Senior Counsel has pleaded that the impugned judgment and order does not warrant any interference in the appeal.

12. In reply, Mr. Mazumdar has contended with reference to Rule 7 of the 1990 Rules that the same does not mandate any requirement of recording reasons by the accepting authority. While reiterating the power and discretion of the accepting authority to differ from the gradings awarded by the reporting as well as the reviewing authorities under the 1990 Rules, the learned Senior Counsel has urged that in the face of two conflicting views of the authorities of the Department with regard to the receipt of the ACRs of the respondent No. 1/writ petitioner for the two periods involved, the appellants are entitled to an opportunity of ascertaining the correct state of affairs. Alternatively, as the respondent No. 1/writ petitioner is grossly delayed in raising this plea, the same ought not to be entertained on this count as well.

13. The respondent No. 1/writ petitioner has filed an additional- affidavit in the appeal to the effect that, though for the period from 2003-2004 (April 2003 to March 2004), three ACRs vis-a-vis him were drawn up for the following segments: -

"i) 01. 04. 2003 to 13. 07. 2003

ii) 14. 07. 2003 to 29. 12. 03

iii) 01. 01. 2004 to 31. 03. 2004. "

Those for (i) and (iii) were deliberately not laid before the Selection Board at its meeting for promotion to the post of Superintending Engineer. The respondent No. 1/writ petitioner has asserted that to his knowledge he had been graded as "Outstanding" for these two periods as well and that the failure on the part of the concerned departmental authorities to place these ACRs before the Selection Board had been to his great detriment and prejudice. He has averred that, whereas the ACRs for the period from 01. 04. 2003 to 13. 07. 2003 had been forwarded by the then Chief Engineer of the Department to the Secretary thereof vide his letter No. NHC. 17/ 2002/23-A dated 30. 08. 2003, the one for the term from 01. 01. 2004 to 31. 03. 2004 was dispatched by the then Chief Engineer (NH Works) PWD, Assam to the same superior authority by his letter No. NHC. 17/2002/46, dated 09. 12. 2004. According to the respondent No. 1/writ petitioner both these ACRs were duly received by the said authority in time, but inspite thereof those were not furnished to the Selection Board for consideration.

14. In reply, the appellants by their counter have denied the receipt of his (respondent No. 1) said ACRs by the Department and maintained that all available ACRs of the respondent No. 1/writ petitioner of the relevant period had been placed before the Selection Board for scrutiny. They have asserted absence of any record of receipt of the said ACRs and have, therefore, refuted the contentions of the respondent No. 1 based thereon.

15. In his rejoinder-affidavit, the respondent No. 1/writ petitioner while reiterating his stand, has insisted on the drawal of adverse inference against the State respondents for their failure to furnish the aforementioned ACRs to the Selection Board as well as to produce the same before this Court.

16. The pleadings on record and the arguments formulated on the basis thereof have received the anxious consideration of this Court. That having regard to the year to which the vacancies involved, the ACRs of the eligible candidates for the period 2000-01, 2001-02, 2002-03, 2003-04 and 2004-05 are of decisive relevance, is an undisputed proposition. The photo copy of the departmental note placed before the Selection Board in its meeting to be held on 28. 07. 2006 in clear terms disclose that the ACRs of the respondent No. 1/writ petitioner for the aforementioned periods had been forwarded to it (Department) and his name figured at Sl. No. 62 in the list of candidates, whose cases were to be considered for promotion as Superintending Engineer. The compilation of the relevant extracts from the related records pertaining to the officers under consideration reveals that vis-a- vis the respondent No. 1/writ petitioner, his gradings for the relevant years were enumerated as hereunder: -

"i) 2001Outstanding

ii) 2003Outstanding

iii) 2002 Outstanding

iv) 2004Good

v) 2005Good. "

17. The original records produced in course of the hearing disclose that his ACRs for the period from 2000-01, 2001-02 and 2002-03 were complete. However, for the period from 2003-04 and 2004-05, those for the following segments exist: -

"i) 14. 07. 2003 to 29. 12. 2003

ii) 01. 04. 2004 to 24. 06. 2004

iii) 28. 07. 2004 to 17. 02. 2005. "

In all these constituent periods though the respondent No. 1/writ petitioner had been assessed to be "Outstanding" by the reporting as well as the reviewing authorities, he has been graded as "Good" by the accepting authority.

18. Noticeably, in-reply to the respondent No. 1/writ petitioner's assertion that the ACRs for the periods from 01. 04. 2003 to 13. 07. 2003 and 01. 01. 2004 to 31. 03. 2004 had been drawn up and forwarded to the Secretary of the Department, the State respondents have denied the receipt thereof. By the letters No. NHC. 17/ 2002/23-A dated 30. 08. 2003 and No. NHC. 17/2002/46, dated 09. 12. 2004 of the Chief Engineer, PWD (NH Works) Assam, the respondent No. 1/writ petitioner's ACRs for the aforementioned two segments seem to have been forwarded to the Secretary, Public Works Department, Assam. The endorsement on the body of these letters, prima facie, suggests the receipt thereof as well. In the teeth of these contemporaneous documents, the contrary stand of the Commissioner and Special Secretary of the Department recorded in the affidavit-in-reply dated 22. 03. 2010 in the instant appeal is intriguing, more so, as the authenticity or genuineness of the aforementioned letters have not, in categorical terms, been questioned by the said departmental authority.

As a matter of fact, this disclosure surfaced in course of the arguments in the connected writ appeals arising from the same decision of the learned Single Judge following which, on the prayer made on behalf of the respondent No. 1/writ petitioner herein, the instant appeal was segregated from the batch for further exchange of pleadings on this facet of the lis. This was by order dated 20. 03. 2008 passed in the present appeal. Though, two years have elapsed in between, the appellants are not yet in a position to assert with certainty that the ACRs of the respondent No. 1/writ petitioner for the aforementioned two terms had neither been drawn up nor, in fact, forwarded by the Chief Engineer of the Department to the appropriate higher authority. In the face of the letters No. NHC. 17/ 2002/23-A dated 30. 08. 2003 and No. NHC. 17/2002/46, dated 09. 12. 2004, which remain unchallenged and in view of the failure on the part of the departmental authorities to account for the same with necessary emphasis and clarity, this Court is not inclined to grant further time to them in this regard. The deduction that follows is that the ACRs of the respondent No. 1/writ petitioner for these periods had, in fact, been drawn up, but not, for inexplicable reasons been furnished to the Selection Board for the evaluation thereof in the process of considering his case for promotion to the post of Superintending Engineer.

19. Apart from the absence of any specific rebuttal by the departmental authorities to the assertion that the respondent No. 1/writ petitioner had been for these two periods on an assessment of his remarkable performance, graded as "Outstanding", by the Reporting as well as the Reviewing Authority, the persistent plea of the appellants in their affidavit-in- reply filed in the instant appeal that his (respondent No. 1) "available" ACRs had been forwarded to the Selection Board, betrays a casual stance regardless of the statutory duty of theirs as enumerated under Rule 9 of the 1990 Rules to ensure the safe custody thereof. The said provision requires the reporting and accepting authorities of the Annual Confidential Reports to forward the same to the safe custody of the respective controlling officers/head of offices. This assumes significance in the facts of the instant case, in the context of the letters dated 30. 08. 2003 and 09. 12. 2004 of the Chief Engineer of the Department referred to hereinabove.

The official communication No. NHC. 138/2002/85 dated 13. 03. 2009 of the Superintending Engineer (P) NH for the Chief Engineer, PWD NH (Works), Assam to the Executive Engineer, PWD, Rangia, NH Division, Rangia, is also of corroborative relevance. Thereby, the Executive Engineer was informed that the ACRs of the respondent No. 1/writ petitioner for the said two periods had already been submitted to the Government vide the letters dated 30. 08. 2003 and 09. 12. 2004. This letter was in response to the one dated 04. 03. 2009 of the Executive Engineer, PWD, Rangia, enquiring about the issue number and date of the said ACRs. The prepotent and contemporaneous documents as above, therefore, establish that the abovementioned ACRs of the respondent No. 1/writ petitioner though duly received by the concerned departmental authority, had not been furnished to the Selection Board to be considered in its meeting on 28. 07. 2006. The respondent No. 1/writ petitioner's plea of prejudice by such failure therefore, cannot be readily discarded. In the attendant facts and circumstances, adverse presumption against the appellants is also permissible to the benefit of the respondent No. 1/writ petitioner. The explanation submitted by the appellants is far from satisfactory and not only they are disentitled to further time to provide additional informations in this regard, their failings are a serious reflection on their bona fide, fairness and transparency in action otherwise so peremptorily indispensable under the law. The above notwithstanding, the validity or otherwise of the moderation of the respondent No. 1/writ petitioner's grading from "Outstanding" to "Good" for the period 2003-04 and 2004-05 would hold the ultimate sway of the course of the present adjudication. A division Bench of this Court in Pradyut Kumar Choudhury & Ors. (Supra), on an exhaustive survey of the relevant judicial pronouncements on the issue had, in unequivocal terms, propounded the indispensable and imperative necessity of recording reasons by the accepting authority under the 1990 Rules in case of disagreement or difference with the assessment and grading recorded by the reporting officer and/or the reviewing authority. Following a rigorous scrutiny of the various provisions of the 1990 Rules and reiterating the roles of the triumvirate of the authorities there under to appraise the performance of the officers governed thereby objectively, fairly and dispassionately, the obligation to record reasons in the aforementioned eventuality, was enunciated to be a guarantee for the valid discharge of the statutory duty cast on them. A fair and objective disposition of the said authorities for actualizing the underlying purpose of the legislative empowerment was emphasised upon. That their subjective satisfaction is to essentially comport with the objective determination based on relevant materials was also underlined.

The Apex Court in Dev Dutt vs. Union of India & Ors. , (2008) 8 SCC 725, in reiteration of the inalienable essentiality of fairness in State action, had held that every entry in the Annual Confidential Report of a pubic servant to the exception of "Outstanding" has to be communicated to him. Seeking thereby to formulate a new principle of natural justice, their Lordships observed that the State as a model employer is obliged to act fairly towards its employees to ensure good governance and that except, in case of military officers, communication of such entries in the Annual Confidential Report of a public service has to be caused lest he/she is adversely affected and is visited with detrimental civil consequences.

20. The ACR of the respondent No. 1/writ petitioner for the term 14. 07. 2003 to 29. 12. 2003 discloses that he had been assessed to be "Outstanding" by both the reporting as well as the reviewing authority under the 1990 Rules. The accepting authority made the following remarks: -

"There is no reasoning for outstanding remarks. Accepted as good

Sd/-

Illegible

19/7"

21. This ACR, which apparently is in the form, as prescribed under Schedule-II of the aforementioned Rules, has to set out in details the description of work on which the respondent No. 1/writ petitioner was engaged during the period of assessment. On the various aspects of his performance and personal traits as catalogued in the form, he has been rated to be excellent and/or outstanding by the reporting authority. In the general opinion of the reviewing authority he was found to be energetic and quite fit for the next higher rank. Though, visibly the analysis of the reporting as well as the reviewing authority on the various facets of the individual qualities of the respondent No. 1/writ petitioner is not accompanied by detailed reasons, the evaluation having been made by an officer immediately superior to him who had supervised his performance, cannot be nixed in absence of overwhelming materials to the contrary. Even assuming, the above notwithstanding, that the accepting authority was justified in not endorsing the grading awarded by the reporting as well as the reviewing authority, no basis has been disclosed by him as well, to down grade the respondent No. 1/writ petitioner as "Good" by disregarding the immediate lower step of "Very Good". If the appreciation made by the reporting authority of the various attributes of the respondent No. 1 i. e. aptitude, initiative, drive and efficiency in his performance for the period, in question, is rejectable, in absence of detailed reasons, by applying the same standard, the conclusion of the accepting authority is unsustainable as well. The lowering of the grading of the respondent No. 1/writ petitioner from "Outstanding" to "Good" is not reinforced by any reason whatsoever in the true sense, in absence of any objective determinant guiding the same. The appraisal made by the reporting authority obviously is more detailed touching of the prescribed aspects of the incumbent's performance and individual faculties bearing thereon. Having regard to the solemn obligation of the accepting authority to record reasons in case of divagation from the conclusions scripted by the reporting and the reviewing authority, as is propounded in Pradyut Kumar Choudhury & Ors. (Supra), the down grading of the respondent No. 1/writ petitioner's from "Outstanding" to "Good" cannot be sustained. For the term 01. 04. 2004 to 24. 06. 2004 as well, the reporting authority as well as the reviewing authority had assessed the respondent No. 1/ writ petitioner to be "Outstanding". The accepting authority, however, has remarked as hereunder: -

"I have not seen any outstanding work and reporting & reviewing officers also could not furnish any detail report. Accepted as Very good.

Sd/- illegible

19/7. "

22. For the following period 28. 07. 2004 to 17. 02. 2005, whereas, for the identical items of work the reporting as well as reviewing authority had graded the respondent No. 1/writ petitioner as "Outstanding", the accepting authority observed as follows: -

"There is no outstanding performance.

Accepted as good.

Sd/-

19/7. "

23. Apart from the fact that the accepting authority had recorded his entry on the very same date for all the above periods i. e. 19/7, the gradings awarded by him varied for the same works for the two consecutive terms from 01. 04. 2004 to 24. 06. 2004 and 28. 07. 2004 to 17. 02. 2005 as "Very Good" and "Good" respectively, the reason though common i. e. absence of noticeable outstanding performance by the officer concerned. Visibly the accepting authority has omitted to make any independent assessment of the performance of the respondent No. 1/writ petitioner resulting in two gradings for the similar nature of work for the two periods. This, in the estimate of the Court, is an obvious failure on the part of the accepting authority, he having discarded the consistent and concordant evaluations to the contrary made by the reporting as well as the reviewing authority. The accepting authority, though within his dominion to differ from the reporting as well as reviewing authority has an independent and distinct responsibility of effecting an analysis of his own of all the relevant materials to justify a different grading if awarded by him. An ostensible disagreement with the reporting and the reviewing authority, in absence of any perceptible justification in support thereof, ipso facto, would not render the grading awarded by him tenable. Not only, the accepting authority for the aforementioned two periods, having regard to the resemblance of the works has recoded two irreconcilable gradings, no persuasive reason in support thereof is decipherable as well. The conclusion of lack of objectivity and application on his part as marked by the learned Single Judge, therefore, commends for acceptance in the facts and circumstances of the case.

24. In the wake of the determination made hereinabove, we are of the considered opinion that the views expressed in the impugned judgment and order vis-a-vis the writ proceeding involved, do not merit interference at this end. As a corollary, the operative directions contained therein, are also affirmed. The appellants would take the consequential steps forthwith. The appeal is dismissed. No costs.