Dismissed

The Director General Department v. Sri. T. Venkatesu S/o T. Somaiah

Telangana HC19 Mar 2014WP/9164/2005

Case brief

AI extract

What is this about?

This Court dismissed a Writ Petition challenging the Central Administrative Tribunal's order denying promotion to a respondent due to a non-communicated 'Average' ACR entry. Upholding the Tribunal, the Court held that while 'Average' may not be legally adverse, its non-communication to the officer violates natural justice principles established in Sukhdev Singh.

What did the court decide?

Petition dismissed without costs; Tribunal order directing reconsideration of promotion case stands uninterfered with.

The Director General Department Vs Sri. T… — Pension and Retirement Benefits | Telangana HC (2014)

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THE HON'BLE SRI JUSTICE K.C.BHANU AND

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THE HON’BLE MRS JUSTICE ANIS

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WRIT PETITION No.9164 OF 2005

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ORDER:- (per Hon’ble Sri Justice K.C.Bhanu)

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Challenging the order, dated 07.12.2004, in Original Application No.100 of 2012 passed by the Central Administrative Tribunal, Hyderabad Bench, Hyderabad (for short, ‘the Tribunal’), the present Writ Petition is filed.

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2. Case of respondent No.1 is that his promotion was rejected by the Departmental Promotion Committee (DPC), in its Meeting held on 03.01.2002 on the ground that in the financial year 1997-98, the entry in the Annual Confidential Report (ACR) was noted as ‘Average’. However, promotion was given to respondent No.2 herein, who is a junior to him. On the ground that the ‘Average’ entry which was recorded in ACR, in the financial year 1997-98, was not communicated, the Tribunal held that respondent No.1 is entitled to the relief claimed in the Original Application and accordingly allowed the Original Application. Challenging the same, the present Writ Petition is filed.

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3. Learned counsel, appearing for the petitioners, contended that the entry, which was noted in the ACR in the financial year 1997-98 as the remark ‘Average’ cannot be read as an adverse remark and hence, he prays to set aside the impugned order.

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4. On the other hand, learned counsel for the respondent No.1 contended that in view of the fact that the Bench mark is to be taken ‘good’ for getting higher promotion, the remark ‘Average’ can be said to be an adverse entry and therefore, the Tribunal rightly allowed the Original Application and there is no illegal or incorrect finding.

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5. It is not in dispute before this Court that originally respondent No.2 had given promotion. Respondent No.2 is junior to respondent No.1. Solely on the ground that the entry in the ACR for the financial year 1997-98 as ‘Average’, in respect of respondent No.1, the same has been taken into consideration in denying promotion to him. It is also not in dispute that the Bench mark to be considered for promotion to the post of Higher Selection Grade-I (General Line) is ‘Good’. Though as per the guidelines issued by the Central Government in conducting DPC, ‘Average’ may not be taken as an adverse remark in respect of an Officer, at the same time, it cannot be regarded as complimentary to an Officer as ‘Average’ performance should be regarded as routine and undistinguished.

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6. No doubt, the departmental instructions would go to show that the performance ‘Average’ cannot be taken as an adverse remark, but at the same time, it can be adverse to the case of respondent No.1 for considering his promotion. In such view of the matter, the authorities, ought to have communicated the adverse entry recorded as ‘Average’ in the ACR in the financial year 1997-98 to respondent No.1.

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7. Learned counsel for respondent No.1 placed strong reliance on a decision reported in SUKHDEV SINGH V. UNION OF INDIA AND OTHERS^[1] , wherein it was held thus (para 8):

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“In our opinion, the view taken in Dev Dutt (2008)8 SCC 725) that every entry in ACR of a public servant must be communicated to him/her within a reasonable period is legally sound and helps in achieving threefold objectives. First, the communication of every entry in the ACR to a public servant helps him/her to work harder and achieve more that helps him in improving his work and give better results. Second and equally important, on being made aware of the entry in the ACR, the public servant may fell dissatisfied with

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the same. Communication of the entry enables him/her to make representation for upgradation of the remarks entered in the ACR. Third, communication of every entry in the ACR brings transparency in recording the remarks relating to a public servant and the system becomes more conforming to the principles of natural justice. We, accordingly, hold that every entry in ACR-poor, fair, average, good or very good-must be communicated to him/her within a reasonable period.

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In view of the above decision, the entry in the ACR like poor, fair, average, good or very good must be communicated to the Officers concerned within a reasonable time.

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8. Admittedly, in this case, the said entry of ‘Average’ in ACR relating to respondent No.1 for the financial year 1997-98 has not been communicated to him. Therefore, considering these aspects, the Tribunal rightly directed the petitioners herein to consider the case of respondent No.1 for promotion and that order needs no interference by this Court.

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9. Accordingly, the Writ Petition is dismissed, however, in the circumstances, without costs. Miscellaneous petitions, if any, pending in this Writ Petition shall stand closed.

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______________________ JUSTICE K.C.BHANU

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_______________ JUSTICE ANIS

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MARCH 19, 2014 YVL

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THE HON'BLE SRI JUSTICE K.C.BHANU AND

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THE HON’BLE MRS JUSTICE ANIS

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WRIT PETITION No.9164 OF 2005

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DATE:19.03.2014

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YVL

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[1] (2013) 9 Supreme Court Cases 566

The Director General Department v. Sri. T. Venkatesu S/o T. Somaiah

Case brief

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The Director General Department v. Sri. T. Venkatesu S/o T. Somaiah

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