Page No.# 1/13 GAHC010007102025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/293/2025 SAJU KUMAR JADAV S/O DULAL CHANDRA GHOSE, M.SC. DEPUTY DIRECTOR, IN THE OFFICE OF DIRECTOR OF SECONDARY EDUCATION, ASSAM, R/O HOUSE NO. 19, SOUTH BYE LANE NO. 2, LACHITNAGAR, GUWAHATI, KAMRUP (M), ASSAM, PIN-781007 VERSUS THE STATE OF ASSAM REPRESENTED BY THE SECRETARY TO THE GOVT. OF ASSAM, DEPARTMENT OF SCHOOL EDUCATION (SECONDARY EDUCATION DEPARTMENT), ASSAM (CIVIL) SECRETARIAT, BLOCK-C, DISPUR, GUWAHATI, ASSAM, PIN-781006 Advocate for the Petitioner : MR. B PURKAYASTHA, Advocate for the Respondent : SC, SEC. EDU., BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER 03.11.2025 Heard Mr. B. Purkayastha, learned counsel for the petitioner and Mr. U. Sarma, learned standing counsel for the Secondary Education Department. 2. In this petition, under Article 226 of the Constitution of India, the petitioner, namely Sri Saju Kumar Jadav, has prayed :- Page No.# 2/13 (i) For setting aside and quashing the remarks of degradation, awarded by the reviewing authority and accepting authority in his Annual Confidential Report (ACR hereinafter) for the year 2019 – 2020 (Annexure – 8A), 2020 – 2021 (Annexure – 8B), 2023 – 2024 (Annexure – 8C); (ii) For directing the respondent authorities to redo the promotional exercise in respect of his promotion to the cadre of Joint Director as per the provisions of Assam Education Service Rules, 1982 (Rule 1982 hereinafter); (iii) For directing the respondent authorities to grant retrospective consequential promotional benefits to him whatever granted to the incumbents junior to him; and (iv) For directing respondent authorities to consider his candidature for the post of Additional Director, in the event the junior incumbents serving/promoted in the cadre of Joint Director, vide Notification dated 15.02.2024 (Annexure – 2). Background Facts:- 3. The backgrounds facts, leading to filing of the present petition, are adumbrated herein below:- “The petitioner was appointed in the year 2013, in the cadre of Deputy Director/Inspector of Schools/District Elementary Education Officer (DEEO hereinafter), as per the provision of Rules 1982, on the basis of selection done by the APSC and since then, he has been serving in the same cadre in different capacities and presently he is posted as Deputy Director, in the office of the Director of Secondary Education, Assam, Page No.# 3/13 w.e.f. March, 2021. On 26.07.2024, the respondent has convened a meeting of the DPC, for promotion to the cadre of Joint Director, under the provisions of the Rules 1982, from the feeder cadre of Deputy Director/Inspector of Schools/DEEO, in which the present petitioner is also serving as Deputy Director, in the office of the Director of Secondary Education, Assam and as per the notification dated 05.11.2019, issued by the Government, ACR for the period of past five years of service are taken into consideration and marks are awarded on the basis of the final acceptance remark of the ACR given by the Accepting Authority. It is the contention of the petitioner is that as per the provision of the Assam Services (Confidential Rolls) Rules, 1990 (Rules 1990 hereinafter), in the event of Reviewing Authority and Accepting Authority differ from the assessment of the Reporting Authority and degrades the remark of the employee, the employee concerned has to be given the opportunity to submit his representation and the authority concerned has to give the reasons for such deferment of their opinion. Further, the authority has to remain in his office for a minimum period of ninety days for awarding the remarks for a particular period. In the instant case, in total violation of the statutory provision of the Rules 1990, the authorities have degraded the remark and imposed the adverse remark in the ACR of the petitioner for the year 2019 – 2020, 2020 – 2021 and 2023 – 2024 and thereby, awarded him lesser mark in order to unlawfully place him below the junior incumbents to him in the merit list and kept the petitioner out the zone of consideration for promotion to the post of Joint Director in the Department of School Page No.# 4/13 Education.” 4. Being aggrieved, the petitioner has approached this Court by filing the present petition challenging the adverse impugned remark awarded by the Reviewing Authority and Accepting Authority in his ACR. 5. The respondent authorities have filed their affidavit-in-opposition, wherein a stand has been taken that as per recommendation of selection board meeting held on 26.07.2024, some incumbents, serving in the cadre of Deputy Director/Inspector of Schools/DEEO, were promoted to the post of Joint Director, vide notification dated 30.07.2024, wherein the petitioner was not included as his name was not recommended for promotion by the selection board. 5.1. It is also stated that the respondent authorities is that as requested by the petitioner, vide RTI Appeal dated 09.09.2024 and RTI application dated 14.11.2024, the Department of School Education had provided the copies of the ACR to the petitioner for the year 2019 – 2020, 2020 – 2021, 2021 – 2022, 2022 – 2023, 2023 – 2024 as well as the copy of the minutes of the selection board meeting held on 26.07.2024. But, the copies of the ACR of other incumbents and marks awarded by the selection board have not been provided to him on account of third party information. 5.2. Another stand taken by the respondent authorities is that in respect of degradation of the petitioner's ACR by the Reviewing as well as Accepting Authority, there is no such provision in the Rules 1990 that the degradation in the ACR has to be intimated to the employees concerned and he/she ought to have been given an opportunity to submit his/her representation in support of their claim. However, in Rule 10 of the same, it has been stated that where a Page No.# 5/13 confidential report of an employee contains an adverse or critical remarks, it shall be communicated to the employee concerned by the Reviewing Officer in writing along with a substance of entire confidential report, within a period of one month of its acceptance by the Accepting Authority, when all the three authorities are in the same station, but when the three authorities in different station, the communication of report of adverse remarks may be made by the Controlling Officer of the office after acceptance of the report. In either case, a certificate to the effect that the report of adverse remarks has been communicated to the person concerned, shall be recorded in the annual confidential report before it is sent to safe custody. 5.3. It is also stated that the remarks of the Accepting Authority in the ACRs of the petitioner as well as all the officers, under the zone of consideration, for the period prior to 10.05.2021, was not taken into consideration, only the remarks of Reviewing Authority was taken into consideration for promotion. 5.4. Further stand of the respondent authorities is that there was no adverse remarks recorded in the petitioner's ACRs by the Reviewing and Accepting Authority and therefore, intimation about the adverse remarks to him does not arise and though the Accepting Authority degraded from 'Very Good' to 'Good' in the petitioner's ACRs for the year 2019 – 2020 and 2020 – 2021, the said remarks was not taken into consideration, only the remarks of Reviewing Authority, i.e. 'Very Good' was taken into consideration. In respect of petitioner's ACR for the year 2023 – 2024, the remarks of Accepting Authority, i.e. 'Good' was taken into consideration. 5.5. It is also stated that the claim made by the petitioner that he was deprived illegally/intentionally by the respondent authorities, the promotions from the cadre of Deputy Director/Inspector of Schools/DEEO to the Joint Page No.# 6/13 Director's cadre were made only on the recommendation made by the selection board and the selection board in its meeting held on 26.07.2024, had recommended the eligible incumbents for promotion on perusal of their ACR dossiers, DP position, submission of the Immovable Property, Vigilance Clearance Report, etc. and in order of merit cum seniority list, as per Rule 12(4) of the Rules 1982 and Notification No. ASE.794/2018/VP 5367/13/88, dated 05.11.2019. Submissions:- 6. Mr. Purkayastha, learned counsel for the petitioner submits that the petitioner was illegally deprived of from being promoted to the post of Joint Director. Mr. Purkayastha further submits that the ACRs of the petitioner for the year 2019 – 2020, 2020 – 2021 and 2023 – 2024 were not communicated to him, although, the Rule 10 of the Rules 1990 provides for communication of the adverse remarks to the petitioner so as to enable him to file representation against such remarks. Mr. Purkayastha also submits that since the adverse remarks in the ACR for the aforementioned years have not been communicated to the petitioner, he could not make any representation against the said adverse remarks as provided in Rule 11 of the Rules 1990 and thereby, serious prejudice is caused to him. 6.1. Mr. Purkayastha, by referring to two decisions of Hon’ble Supreme Court, in the case of Dev Dutt vs. Union of India and Others, reported in (2008) 8 SCC 725 and Sukhdev Singh vs. Union of India and Others, reported in (2013) 9 SCC 566, and a decision of this Court, in the case of Subash Kushwaha vs. Union of India and Others, in W.P.(C) No. 2382/2020, dated 03.12.2024, submits that the adverse remarks in the ACRs of Page No.# 7/13 the petitioner for the aforementioned years, have to be set aside and quashed and the Reviewing Authority may be directed to grant all consequential promotional benefits to the petitioner with retrospective effect, which were granted to the incumbents junior to him. Under such circumstances, he has contended to allow this petition. 7. Per-contra, Mr. Sarma, learned standing counsel for the Secondary Education Department has opposed the petition and submits that no prejudice is caused to the petitioner herein and the petitioner cannot be promoted retrospectively. 7.1. However, to a pointed query of this Court, as to whether the adverse remarks of the petitioner in the ACRs for the aforementioned years were communicated to him or not, Mr. Sarma submits that from the affidavit-in- opposition filed by the respondent authorities, it cannot be said that the aforesaid adverse remarks were communicated to the petitioner. Discussion and analysis:- 8. Having heard the submissions of learned counsel for both the parties, I have carefully gone through the petition as well as the documents placed on record and also gone through the decisions referred by the learned counsel for the petitioner. 9. It is to be noted here that in the case of Dev Dutt (Supra), Hon’ble Supreme Court has held as under:- “17. ...every entry in the ACR of a public servant must be communicated to him within a reasonable period, whether it is a poor, fair, average, good or very good entry. This is because non-communication of such an entry may adversely affect the employee in two ways: (1) had the Page No.# 8/13 entry been communicated to him he would know about the assessment of his work and conduct by his superiors, which would enable him to improve his work in future; (2) he would have an opportunity of marking a representation against the entry if he feels it is unjustified, and pray for its upgradation. Hence, non- communication of an entry is arbitrary, and it has been held by the Constitution Bench decision of this Court in Maneka Gandhi vs. Union of India, reported in AIR 1978 SC 597 that arbitrariness violates Article 14 of the Constitution. 18. Thus, it is not only when there is a benchmark but in all cases that an entry (whether it is a poor, fair, average, good or very good) must be communicated to a public servant, otherwise there is violation of the principle of fairness, which is the soul of natural justice. Even an outstanding entry should be communicated since that would boost the morale of the employee and make him work harder.” 9.1. Thus, from the decision in Dev Dutta’s case following proposition can be culled out:- 1. Non-communication of adverse remark deprives an employee of the opportunity to seek rectification and thereby violates Article 14, of the Constitution of India that forbids arbitrariness in State action and undergirds the right to fair treatment. 2. Even ostensibly “good” entries may become adverse when a benchmark of “very good” is applied by the Departmental Promotion Committee (DPC) and non- communication of the same to an employee deprive him of the opportunity to make representation against such remark and consequently denying promotion to him Page No.# 9/13 violates Article 16(1), that guarantees equality of opportunity in public employment, including promotion. 3. Transparency fosters administrative efficiency and employee morale. 10. Again, in the case of Sukhdev Singh (Supra), Hon’ble Supreme Court has held as under:- “8. ....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. Accordingly, hold that every entry in ACR – poor, fair, average, good or very good – must be communicated to him/her within a reasonable period.” 11. Thus, the proposition of law, in respect of communication of remark in the ACR, is well settled and the same is provided in the Rule Nos. 10 & 11 of the Rules 1990 also, which are reproduced herein below:- “10. Communication of the adverse remarks- Page No.# 10/13 Where a confidential report of an employee contains an adverse or critical remarks, it shall be communicated to him by the Reviewing Officer in writing together with a substance of entire confidential report ordinarily within one month of its acceptance by the Accepting Authority when all the three authorities are in the same station. When the three authorities in different station, the communication of adverse remarks may be made by the Controlling Officer/Head of the Office after acceptance of the report. In either case, a certificate to the effect that the adverse remarks has been communicated to the person concerned, shall be recorded in the annual confidential report before it is sent to safe custody. 11. Representation against adverse remarks- An employee may be represented to the State Government or in the authority next above the Accepting Authority as the case may be, against the adverse remarks communicated to him under Rule 10 within 60 days of the date its receipt by him. Period that the authority as aforementioned may entertain a representation within another 60 days of the said period if it is satisfied that the employee and sufficient for not submitting the representation in time. Provided further that after a decision is communicated by the complete authority on the representation made by an employee for explanation of any adverse remarks in his ACR, normally no further representation should be entertain unless the officer has new grounds in his subsequent representation for reconsideration and such representation should be submitted within one month from the date of receipt of the decision on his first representation.” Page No.# 11/13 12. From a cursory perusal of the affidavit-in-opposition, filed by the respondent authorities, this Court is unable to derive its satisfaction regarding communication of the remarks to the petitioner herein. 13. In the instant case, in paragraph No. 5 of the petition, the petitioner has made specific contention that the Reviewing Authority and the Accepting Authority have degraded the remarks from Excellent to Very Good and then Very Good to Good and the said degradation has to be intimated to the petitioner. 13.1. In paragraph No. 6, of the affidavit-in-opposition, the respondent authorities have not traversed the said contention made by the petitioner. Moreover, Mr. Sarma, learned standing counsel for the Secondary Education Department, has admitted that the adverse remarks recorded in the ACR of the petitioner have not been communicated to him. 14. The remarks in the ACR of him for the year 2019 – 2020 (Annexure – 8A), 2020 – 2021 (Annexure – 8B) and 2023 – 2024 (Annexure – 8C), are reproduced below for ready reference:- (i) ACR for the year2019 – 2020 (Annexure – 8A), Reporting Authority Reviewing Authority Accepting Authority Very Good Very Good Good (ii) ACR for the year2020 – 2021 (Annexure – 8B), Reporting Authority Reviewing Authority Accepting Authority Very Good Very Good Good Page No.# 12/13 (iii) ACR for the year2023 – 2024 (Annexure – 8C), Reporting Authority Reviewing Authority Accepting Authority Excellent Very Good Good 14.1. In view of non-communication of the adverse remarks to the petitioner in the ACR of him for the year 2019 – 2020 (Annexure – 8A), 2020 – 2021 (Annexure – 8B) and 2023 – 2024 (Annexure – 8C), prejudice caused to the petitioner is writ large as it had cascading effect upon his promotion to the post of Joint Director and as such, the adverse remarks are illegal and arbitrary and the same violates the right of the petitioner guaranteed under Article 14 and 16 (1) of the Constitution of India. Thus, the petitioner has succeeded in making out a case for interference of this Court. Conclusion:- 15. In the result this petition stands allowed. Following the dictum of Dev Dutta’s case, it is provided that the “good” entry in the ACR of him for the year 2019 – 2020 (Annexure – 8A), 2020 – 2021 (Annexure – 8B) and 2023 – 2024 (Annexure – 8C), shall be communicated to the petitioner forthwith and he should be permitted to make a representation against the same, praying for its up-gradation. And in the event of allowing his up-gradation, he should be considered forthwith for being promoted to the post of Joint Director, retrospectively, by constituting a review Departmental Promotion Committee, and if he is found eligible for being promoted to the said post and on such promotion being made, he will get the benefit of higher scale of pay and the Page No.# 13/13 arrears of pay shall be paid with interest @ 8% per annum, till the date of payment. 16. If, in the meantime, the petitioner is found eligible for being promoted to the next higher post, then the respondent authorities shall also consider the same. 17. The exercise mentioned in paragraph No. 15 of this order, shall be carried out within a period of three months from the date of receipt of certified copy of this order. The petitioner shall obtain a certified copy of this order and place the same before the respondent authority with a period of two weeks from today. 18. The parties have to bear their own costs. JUDGE Comparing Assistant