Asi Ravinder Singh v.

Union Of India And Others

% Judgement pronounced on: 28.02.2022 + REVIEW PET. 118/2021 in W.P.(C)

1. The respondent-Union of India (UOI) has filed the present review petition under
Section 137 read with Order XLVII Rule 1 of the Code of Civil Procedure, 1908 against the
final judgment and order dated 05.11.2019, passed by this Court in W.P (C) 12302/2018.
Vide the said judgment/order, the writ petition filed by the petitioner was allowed in the
following terms: Consequently, the petition is allowed with the following directions: (i)
Appropriate orders will be issued by the Respondents within a period of eight weeks
granting the Petitioner the benefit of the first and second ACP and MACP by treating the
period between the date of his retirement i.e. 18th REVIEW PET. 118/2021 in W.P. (C)
12302/2018 Pg. 2 of 12 June, 2008 and his reinstatement by the order 9th June, 2010, as
period spent on service.

(ii) The Respondents will pay the Petitioner the arrears within a further period of eight
weeks thereafter, failing which, the Petitioner will be entitled to simple interest @ 6% per
annum for the period of delay.

(iii) Within a period of eight weeks from today, the Respondents will issue the necessary
orders as regards the promotion of the Petitioner as SI and thereafter as Inspector from
the date his juniors were promoted and would be given all consequential benefits.

2. Feeling aggrieved, the respondent had filed a Special Leave Petition (SLP) before the
Honble Supreme Court, where liberty was granted to the respondents to file a review
petition of order dated 05.11.2019 passed in the writ petition W.P.(C) 12302/2018, before
this Court. The observation made by the Honble Supreme Court in its order dated
05.01.2021 has been reproduced in the review petition as under:

3) The submissions before this court is that the events which had taken place prior to the
judgment of the High Court, were placed in the form of counter affidavit before the High
Court.

4)Having regard to the nature of the nature of the above submission, we grant liberty to
the Petitioners to move the High Court by way of review on the grounds which are raised
in the Special Leave Petition. In the event that the Petitioners are aggrieved by the final
judgment of the High Court in review, it will be open to them to pursue their remedies
afresh including on the grounds which are raised in the present proceedings.

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3. As per the review petitioners, an inadvertent error has crept in the judgment and order
dated 05.11.2019 as this Court has failed to appreciate the fact that, below benchmark
Annual Confidential Report (ACR) for the assessment years 2005-06, 2006-07 and 2007-
08 were communicated to the REVIEW PET. 118/2021 in W.P. (C) 12302/2018 Pg. 3 of 12
petitioner vide order dated 06.09.2013 and the representation made by the petitioner on
the same day against the adverse remarks for the year 2006-07 and 2007-08 was rejected
and these remarks were not expunged and this decision was communicated to the
petitioner on 04.03.2014. Moreover, the petitioner had not submitted any representation
against the adverse remarks in ACR for the year 2005-06. 3.1. So, this Court had failed to
appreciate that the petitioner was ineligible for the first Assured Career Progression
(ACP)as he was granted promotion to the rank of Head Constable (GD) w.e.f. 10.10.1997.
Moreover, he was not eligible for grant of second ACP since he did not fulfil the eligibility
criteria. However, the second Modified Assured Career Progression (MACP) was granted
to the petitioner on 01.09.2008 and third MACP was granted w.e.f. 01.04.2015 vide order
dated 21.08.2017. 3.2. It has also been pleaded by the review petitioner that, if the
petitioner is considered for promotion to the rank of ASI (GD), without considering the
above-mentioned below benchmark gradings of ACRs for the year 2005- 2006, 2006-
2007 and 2007-2008 in the DPC List-C held on 05.05.2011 and subsequent DPCs, the
same will be in contravention to the instructions of the Department of Personnel and
Training (DoPT) and it will open a Pandora box. 3.3. In the grounds of review, it has been
mentioned that this Court failed to correctly apply the law laid down by the Honble
Supreme Court in the matter of Dev Dutt vs. Union of India & Ors., 2008 (8) SCC 725,
wherein it was held that every entry, adverse or not, relating to a public servant be
communicated to him and he should have a right to make a representation against the
said entry before the concerned authority. As per the REVIEW PET. 118/2021 in W.P. (C)
12302/2018 Pg. 4 of 12 respondents, petitioner was communicated the ACRs for the
relevant period vide letter dated 06.09.2013, against which representation was made and
the competent authority decided not to expunge adverse remarks. 3.4. It has also been
mentioned that this Court did not take into consideration the subsequent judgment of
Honble Supreme Court in a batch of Civil Appeals with the main Civil Appeal bearing no.
1298-1299 of 2017 titled A.K. Gupta vs. Union of India & Anr., wherein the Supreme
Court has taken the view that the adverse entry, if not communicated in time, its effect
cannot be wiped out. The Court further directed Union of India to communicate the
adverse entry to the respondents and they be allowed to make representations and in case
the ACRs are upgraded, then review Departmental Promotion committee (DPC) may be
held. 3.5. It is also the case of the respondents that, the time prescribed in the circular for
communication of the adverse entry is not mandatory but discretionary, and if the
adverse entry is not communicated in time, it is not wiped out. 3.6. The case of the review
petitioner is that, there are no further representations/appeal provided after the decision
of the competent authority on the representation submitted by the concerned official
against the grant of adverse remarks/below benchmark grading in his Annual
Performance Appraisal Report (APAR). The DPC was to assess the suitability of the
employees on the basis of ACRs for the five preceding years, irrespective of qualifying
service prescribed in the service rules. If ACR has not been written for any reason, the
ACR for the preceding year is to be taken into consideration. The name of the petitioner

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was considered in the DPC held on 05.05.2011, where the DPC List-C assessed his overall
aggregate marks REVIEW PET. 118/2021 in W.P. (C) 12302/2018 Pg. 5 of 12 at 50%. The
name of the petitioner was again considered in the subsequent DPC held on 28.12.2012,
09.09.2013, 15.09.2014 and 24.07.2015. The petitioner could not make the grade due to
adverse/below benchmark of his ACRs/APARs and DPC assessed him deferred/unfit. The
first ACP scheme was not applicable to the petitioner since he was promoted (merged) to
the rank of HC (GD) w.e.f. 10.10.1997 before start of ACP Scheme i.e., on 09.08.1999. He
was not eligible for 2nd ACP on completion of 24 years of regular service till date of
operation of ACP scheme i.e., till 31.08.2008 as he had not fulfilled the eligibility criteria
as prescribed in DoP&T OM dated 09.08.1999. 3.7. The Departmental Screening
Committee (DSC) declared him unfit vide 165 Bn BSF Order No. 1689-90 dated
13.02.2020. The record of the petitioner was assessed by DSC for grant of 3rd financial
upgradation for MACP in Grade Pay of Rs.4200/- in Pay Band-II on 15.07.2011 and
19.03.2012 but he did not fulfil the required benchmark of ACRs/APARs being Good. His
record was again assessed by DSC on 23.09.2016 for grant of 3rd MACP and accordingly
he was recommended for grant of 3rd MACP w.e.f. 01.04.2015 in the Grade Pay of
Rs.4,200/- in PB-II. Accordingly, the petitioner was granted 3rd MACP w.e.f. 01.04.2015
vide 16 Bn BSF Order No. 20900-10 dated 28.12.2016. Petitioner was granted 2nd and
3rd MACP on 01.09.2008 and 01.04.2015 vide 16 Bn BSF Order No. 11946-48dated
21.08.2017. This order has not been quashed and it has not been held that the same is
illegal, so the petitioner was rightly granted 2nd and 3rd MACP in accordance with the
government instructions. 3.8. The petitioner was cleared for promotion to the rank of ASI
(GD) w.e.f. 09.09.2016, as and when he fulfilled the eligibility criteria. The said REVIEW
PET. 118/2021 in W.P. (C) 12302/2018 Pg. 6 of 12 order dated 09.09.2016 has not been
quashed and it has not been held that the promotion of the petitioner through the said
order dated 09.09.2016 is illegal.

4. Reply to the review petition was filed by the petitioner. It is stated that the petitioner
was ordered to retire on 18.06.2008, but on the basis of the representation submitted by
him, the said order was set aside by Director General (DG), Border Security Force (BSF)
on 09.06.2010 and he was ordered to be reinstated in service, and the period of absence
was directed to be regularised in accordance with the provisions of Fundamental Rule
(FR)

54. This Court has observed that ACRs for the years 2005-06, 2006-07, 2007-08 could
not be communicated to the petitioner soon after the said ACRs were written and the non-
communication of the said grading would render them non-est for the purpose of
considering the petitioner for promotion. It was further held by this Court that every entry
in the ACR must be communicated to the petitioner within a reasonable period and such
non-communication is arbitrary, as such violative of Article 14 of the Constitution. On the
basis of these facts, it has been submitted that the law was correctly applied by this Court.

5. We have heard arguments in the review petition. It is not in dispute that the ACRs of
the petitioner for the years 2005-06, 2006-07, and 2007-08 were not communicated to
the petitioner within a reasonable time after the same were recorded. The contention of
the respondent is that the said adverse entries in the ACRs were put to the notice of the

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petitioner vide letter dated 06.09.2013. There is a considerable gap between the dates
when the ACRs were written and the date when the same were communicated to the
petitioner. In between, a lot of incidents had taken place; the petitioner REVIEW PET.
118/2021 in W.P. (C) 12302/2018 Pg. 7 of 12 was ordered to be retired on 18.06.2008; he
served a representation/legal notice and the same was accepted by DG BSF on
09.06.2010; the petitioner was reinstated in service. The said reinstatement order refers
to F.R. 54 for regularization of the period of absence of the petitioner. The case of the
petitioner is that, the said period was accordingly regularized and he was granted
continuity in service. The case of the respondent is that since the petitioner had not
worked for about 2 years i.e., from July 2008 to June 2010, his ACRs for the year 2008-
09, and 2009-10 could not be recorded.

6. The main question to be decided by the bench is as to, whether the communication of
ACRs for the period 2005 to 2008 in the year 2013 is proper or not. The Supreme Court in
Dev Dutt vs. UOI & Ors. (supra) while dealing with this situation has held as under:

38. Thus natural justice has an expanding content and is not stagnant. It is therefore open
to the Court to develop new principles of natural justice in appropriate cases.

39. 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, 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 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. REVIEW PET. 118/2021 in W.P. (C) 12302/2018
Pg. 8 of 12

40. We further hold that when the entry is communicated to him the public servant
should have a right to make a representation against the entry to the concerned authority,
and the concerned authority 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 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 governance be
possible.

7. Admittedly in the present case, there is considerable gap i.e., 5 to 8 years from the
respective dates of recording of ACRs till the date when the same were communicated to
the present petitioner, which is a clear violation of judgment of the Honble Supreme
Court in the matter of Dev Dutt vs. UOI & Ors. (supra).

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8. The review petitioner has relied upon a judgment of Division Bench of the Honble
Supreme Court in the matter of A.K. Gupta vs. Union of India & Anr., Civil Appeal, 1298-
1299/2017, decided on 31.01.2017. In the said case, below benchmark ACRs were not
communicated to the appellant but he was not considered for promotion on the basis of
said below bench mark ACRs, so he challenged the same by filing an OA before the
Central Administrative Tribunal [CAT]; after hearing the parties, the CAT ordered that
the ACRs, which were not Very Good, be ignored. The UOI challenged the said order of
CAT before High Court and the High Court directed the department to communicate the
below benchmark ACRs to the employee, who would have right to file representation. The
employee REVIEW PET. 118/2021 in W.P. (C) 12302/2018 Pg. 9 of 12 challenged the said
order before Honble Supreme Court on the ground that, at that stage, requiring him to
make representation would serve no purpose as he had retired and the persons
responsible for recording his ACRs had also retired. It appears that, side by side, the
employee had submitted the representation to department. By the time the matter came
up for hearing before the Honble Supreme Court, the department had already upgraded
the ACRs, so it was directed to hold review DPC for promotion. 8.1. In connected matter
being Civil Appeal no. 1297/2017, Honble Supreme Court directed the Union of India to
convey the downgrading remarks/adverse remarks for the relevant years to the appellant
within four weeks and the appellant was given 2 weeks time to file the representation and
if the representation would be accepted, a review DPC was ordered to be held and
notional benefits with or without any financial/ consequential benefits were ordered to be
granted. 8.2 In Civil Appeal Nos. 295-296/2012, it was observed that in pursuance of the
orders of the High Court, the ACRs in question were communicated, against which the
appellant Mr. R. K. Pahwa had submitted a representation but the same was rejected and
in view of the above, no further order wascalled for. However, it was made clear that the
appellant was not debarred from challenging the order of rejection of his representation
in accordance with law, if so advised, within one month from the said date.

9. In the case in hand, there is a delay in communicating the adverse entries/ below
benchmark ACRS to the petitioner. There is no explanation regarding the said delay. Copy
of the letter dated 06.09.2013, by which below benchmarks were communicated for the
first time for the years 2005- 06, 2006-07, and 2007-08 is on record and the same reads
as under: REVIEW PET. 118/2021 in W.P. (C) 12302/2018 Pg. 10 of 12 CONFIDENTIAL
Tac HQ-16 Bn BSF C/0 56 A.P.O. No, Steno/APAR/16BN/2013497-98 Dated, the 6 Sept.
2013 No. 80001660 HC Ravindra Singh "B" Coy, 16 Bn BSF SUB: DISCLOSURE OF ACT-
BFLOW BENCFI MARK The substance of remarks which were recorded while you are
remained posted to 194 Bn BSF in your Annual Performance Assessment Report for the
year 2005-06, 2006-07 and 2007-08 are enclosed herewith for your information and
necessary action.

2. The Average remarks are being conveyed to you with a view to help you to improve
upon your performance in the light thereof.

3. Representation, in duplicate, against the above average remarks, should be made

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4 In this connection, your attention is invited to the instructions issued by the Govt of
India and BSF APAR procedure and instruction that, if the competent authority after
examining the representation of the officer against the average remarks recorded in
Annual Performance Assessment Report, finds that the remarks were justified and the
representation is frivolous, a note will be made in the Annual Performance Assessment
Report of the Govt, Servant that he did not take the said remarks in good spirit. The same
set of instruction also provide that only one representation against the average remarks.

5. Please ask receipt of this letter in the enclosed Performa. (A K SAHA) DY

16 BN BSF REVIEW PET. 118/2021 in W.P. (C) 12302/2018 Pg. 11 of 12

10. A half hearted approach is reflected in the contents of the above letter to comply with
the prevailing legal position, as is clear from the wording of para 2 quoted above. We
cannot understand how the employee was expected to improve his performance in the
succeeding years to which the below benchmark ACRs related, when the same were
communicated to him after a gap of 5-8 years.

11. A three judge bench of the Honble Supreme Court in the matter of Sukhdev Singh vs
Union of India & Ors. AIR 2013 SC 2741 has reiterated the law in this regard as under:

8. In our opinion, the view taken in Dev Dutt 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 feel dissatisfied with 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.

12. The law laid down in Dev Dutt (Supra) in regard to communication of below
benchmark ACRs in a reasonable time remains the same, albeit reiterated by the three
judge bench of the Honble Supreme Court in Sukhdev Singh (Supra). There is no sanctity
to the action of the respondents in REVIEW PET. 118/2021 in W.P. (C) 12302/2018 Pg. 12
of 12 communicating the below benchmark ACRs to the petitioner after a gap of 5-8 years.
The said ACRs are to be ignored for the purpose of assessment of the performance record
of the petitioner for grant of ACP/MACP. The gap in service is to be regularised in terms
of F.R. 54 and petitioner is to be considered to be in service for all intents and purposes.

13. There is no sustainable ground to review and set aside the judgment dated 05.11.2019.
The review petition is without any merit, and the same is hereby dismissed. Other
pending applications are also closed. TALWANT SINGH, J. RAJIV SHAKDHER, J.

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