Supreme Court Directs Review of Promotion, Cites Inconsistent ACR: Union of India vs. G.R. Meghwal (23 September 2022)

LEGAL ISSUE: Whether a below-benchmark Annual Confidential Report (ACR) can be the sole basis for denying promotion when previous ACRs were significantly higher and the reporting officer was the same.

CASE TYPE: Service Law (Promotion)

Case Name: Union of India and Ors. vs. G.R. Meghwal

Judgment Date: 23 September 2022

Introduction

Date of the Judgment: 23 September 2022

Citation: 2022 INSC 451

Judges: Justice M.R. Shah and Justice B.V. Nagarathna

Can an employee be denied a promotion based on a single “Good” ACR when their previous ACRs were “Very Good” and the reviewing officer was the same? The Supreme Court of India recently addressed this question in a case concerning a government employee’s promotion. The core issue revolves around the fairness of considering a below-benchmark ACR when there is a stark inconsistency with previous performance evaluations by the same authority. This judgment was delivered by a two-judge bench comprising Justice M.R. Shah and Justice B.V. Nagarathna.

Case Background

The respondent, G.R. Meghwal, was an officer in the Indian Telecom Group A, on deputation to BSNL as Deputy General Manager, Sikar. For the years 2005-2006 and 2006-2007, his Annual Confidential Reports (ACRs) graded him as “Very Good”. However, for the year 2007-2008, his ACR grading was downgraded to “Good.” This below-benchmark grading was communicated to him on 13 May 2010, and he was given the option to submit a representation. Meghwal submitted a representation on 19 June 2010, arguing that his performance had not declined, and the change in grading was unwarranted. His representation was rejected on 1 October 2010. Subsequently, a Departmental Promotion Committee (DPC) convened on 28 December 2010, and denied him promotion to the Senior Administrative Grade (SAG) based on the “Good” ACR for 2007-2008.

Timeline

Course of Proceedings

Aggrieved by the denial of promotion, the respondent filed O.A. No. 430 of 2011 before the Central Administrative Tribunal. The Tribunal found that the remarks for 2007-2008 were adverse and should have been communicated to the officer within the prescribed time limit. The Tribunal also noted the inconsistency between the “Very Good” ACRs of the previous two years and the “Good” ACR of 2007-2008, and set aside the rejection of the representation. The Tribunal directed the department to review the case of the respondent, ignoring the “Good” ACR for 2007-2008. The Union of India appealed this decision by filing a writ petition before the High Court of Judicature for Rajasthan at Jaipur, which was dismissed, upholding the Tribunal’s order.

Legal Framework

The judgment refers to Office Memorandums (OMs) dated 14 May 2009 and 13 April 2010, issued by the Department of Personnel and Training, Government of India, following the Supreme Court’s decision in Dev Dutt vs. Union of India [(2008) 8 SCC 725]. These OMs stipulate that all entries in the Annual Performance Assessment Report (APAR), including the overall grade, should be communicated to the concerned officer. The officer has the right to make a representation against these entries within 15 days. The OMs also state that if an employee is to be considered for promotion and their ACRs prior to 2008-09 contain below-benchmark grading, the employee must be given a copy of the relevant ACR for representation before it is placed before the DPC.

Arguments

Appellant’s Arguments (Union of India):

• The respondent was given an opportunity to make a representation against the below-benchmark ACR of 2007-2008, in accordance with the OMs dated 14.05.2009 and 13.04.2010.
• The High Court and the Tribunal erred in directing the department to ignore the below-benchmark ACR solely because no prior opportunity was given before writing the ACR.
• The decisions in Dev Dutt vs. Union of India [(2008) 8 SCC 725], Abhijit Ghosh Dastidar vs. Union of India [(2009) 16 SCC 146], and Sukhdev Singh vs. Union of India [(2013) 9 SCC 573] are not applicable because the department followed the procedure laid down in the OMs.
• The quality of work performance may vary during different periods, and the reporting officer is the best judge of an employee’s performance.
• The representation against the below benchmark was considered by a duly constituted committee.
• The Court should not interfere with the decision of a duly constituted committee unless there are grounds of illegality, material irregularity, or mala fides, as held in Dalpat Abasaheb Solunke and Ors. vs. Dr. B.S. Mahajan and Ors. [AIR 1990 SC 434].
• The decision in Sukhdeo vs. Commissioner Amravati Division, Amravati and Anr. [(1996) 5 SCC 103], which held that downgrading by the Reviewing Officer without opportunity of hearing is illegal, has been explained in High Court of Judicature at Allahabad vs. Sarnam Singh and Anr. [(2000) 2 SCC 339], where it was held that an opportunity of hearing is not required before an adverse entry is recorded.

Respondent’s Arguments (G.R. Meghwal):

• The below-benchmark “Good” ACR for 2007-2008 was arbitrary because the same reporting officer/reviewing authority had given “Very Good” ratings in the previous two years.
• No opportunity was given to the respondent to improve his performance before the below-benchmark ACR was recorded.
• The decisions in Dev Dutt vs. Union of India [(2008) 8 SCC 725], Abhijit Ghosh Dastidar vs. Union of India [(2009) 16 SCC 146], and Sukhdev Singh vs. Union of India [(2013) 9 SCC 573] mandate that an opportunity to make a representation against adverse remarks/below-benchmark ACR must be given within a reasonable time.
• The remarks in the ACR for 2007-2008 were inconsistent with the previous years and were not communicated within a reasonable time.

Issues Framed by the Supreme Court

The Supreme Court did not frame specific issues in a separate section, but the core issue was whether the High Court and the Tribunal were correct in directing the department to ignore the below-benchmark ACR of 2007-2008. The sub-issue was whether the opportunity to make a representation after the ACR was recorded was sufficient, given the inconsistency in the ACRs.

Treatment of the Issue by the Court

Authorities

Cases Relied Upon by the Court:

Legal Provisions Considered by the Court:

The Court considered the Office Memorandums (OMs) dated 14 May 2009 and 13 April 2010 issued by the Department of Personnel and Training, Government of India. These OMs provide guidelines on the communication of ACR entries and the procedure for considering representations against below-benchmark gradings.

Judgment

How each authority was viewed by the Court:

• Dev Dutt vs. Union of India [(2008) 8 SCC 725]*: The Court acknowledged the principle that all entries in the ACR must be communicated to the employee for representation.
• Abhijit Ghosh Dastidar vs. Union of India [(2009) 16 SCC 146]*: The Court noted that this case approved the view in Dev Dutt.
• Sukhdev Singh vs. Union of India [(2013) 9 SCC 573]*: The Court distinguished this case, stating that the present case had different factual circumstances.
• Sukhdeo vs. Commissioner Amravati Division, Amravati and Anr. [(1996) 5 SCC 103]*: The Court acknowledged this case’s view that downgrading without hearing is illegal but noted that this was explained in Sarnam Singh.
• High Court of Judicature at Allahabad vs. Sarnam Singh and Anr. [(2000) 2 SCC 339]*: The Court used this case to clarify that an opportunity of hearing is not mandatory before recording an adverse entry.
• Dalpat Abasaheb Solunke and Ors. vs. Dr. B.S. Mahajan and Ors. [AIR 1990 SC 434]*: The Court referred to this case to emphasize that the decisions of selection committees should not be interfered with lightly.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the glaring inconsistency in the respondent’s ACRs. The fact that the same reporting and reviewing officer gave “Very Good” ratings for two consecutive years, followed by a “Good” rating with drastically contrasting remarks in the third year, raised concerns about the objectivity and fairness of the assessment. The Court noted that the remarks in the 2007-2008 ACR were “sweeping, extreme, and inconsistent” with previous remarks.

The Court emphasized that while an opportunity to make a representation was provided, the lack of prior communication about the falling standards and the sudden shift in the assessment made the entire process unfair. The Court was also concerned that the representation was not objectively considered. The Court’s decision was thus driven by a need to ensure fairness and transparency in the assessment process.

The Court’s reasoning can be summarized as follows:

• The reporting officer’s drastically different assessment in 2007-2008, compared to the previous two years, raised concerns about its validity.
• The lack of prior communication about the perceived decline in performance deprived the respondent of an opportunity to improve.
• The rejection of the representation was not based on objective reasons.
• The process was inconsistent with the principles of fairness and transparency in public administration.
• The Court found that the Tribunal and High Court were correct in directing the department to review the case by excluding the ACR for 2007-08.

The Court quoted from the judgment:

“The remarks are totally opposite to those entered by the same authority previous years.”

“It would be clear from remarks entered for the year 2007-08 that they were clearly adverse which warranted communication to the officer within the time limits prescribed to enable him to submit his representation.”

“The assessment of 2007-08 were clearly arbitrary and inconsistent and ought not to be allowed to stand in the way of proper assessment of the respondent.”

There were no dissenting opinions in this case.

Key Takeaways

• Inconsistent ACRs can be grounds for review of promotion decisions.
• Public authorities must ensure fairness and transparency in performance assessments.
• Employees should be given an opportunity to improve their performance before being downgraded in ACRs.
• Representations against adverse remarks must be objectively considered.

Directions

The Supreme Court directed the Department to call for a review meeting of the Screening Committee to re-assess the suitability of the respondent for the purpose of grant of SAG, excluding the ACR for the year 2007-2008.

Development of Law

The ratio decidendi of this case is that a below-benchmark ACR cannot be the sole basis for denying promotion when there is a stark inconsistency with previous ACRs by the same reporting officer, and when the employee was not given an opportunity to improve before the adverse assessment. This case reinforces the importance of fairness and transparency in performance assessments and highlights that while an opportunity for representation is necessary, it is not sufficient if the process is inherently flawed due to inconsistency and lack of prior communication.

Conclusion

The Supreme Court dismissed the appeal, upholding the High Court and Tribunal’s decision. The Court emphasized the need for fairness and transparency in performance assessments and directed the department to review the respondent’s promotion case, excluding the inconsistent ACR of 2007-2008. This judgment underscores that while authorities have the right to assess performance, such assessments must be fair, objective, and consistent.