Uncommunicated and Unsubstantiated Adverse ACR Remarks Lacking Record Support Cannot Be Basis to Supersede Seniority

In brief

The question

1. Whether the adverse remarks recorded by the Accepting Authority in the petitioner's ACR were legally sustainable in the absence of specific instances or supporting records

The court held

The Court allowed the writ petition, quashing the resolution dated 14.11.2022 and expunging the adverse remarks from the petitioner's 2018-2019 ACR

It also directed

The Court directed the respondents to convene a Review DPC within 45 days to consider the petitioner’s promotion retrospectively from the date his juniors were promoted. Relief includes re-fixation of pension and retiral benefits, though no back-wages for the period of non-work were granted. Additionally, the Court imposed an exemplary cost of Rs. 10,000/- on the Board, recoverable from the officer who made the unwarranted remarks.

01Facts

The petitioner joined the Assam Khadi and Village Industries Board in 1983 and was promoted to Upper Division Assistant (UDA) in 2014

pp. 3-4

In 2020, his juniors (Respondents 7 & 8) were promoted to Superintendent, superseding him despite his seniority in the gradation list

pp. 4-5

The Board claimed the supersession was due to an adverse remark in the petitioner's 2018-2019 ACR, where the "Accepting Authority" labeled him a "liar" and questioned his integrity, contradicting the "Reporting Officer" who found him punctual, trustworthy, and fit for promotion

pp. 5-6, 9

Following a High Court direction in a previous writ petition (WP(C) 4067/2020), the petitioner represented against the remark

pp. 6-7

On 14.11.2022, the Board rejected his representation and retained the adverse remark despite admitting it had no contemporaneous records to substantiate the allegations

pp. 7-8, 13

02Issues

i.1. Whether the adverse remarks recorded by the Accepting Authority in the petitioner's ACR were legally sustainable in the absence of specific instances or supporting records

pp. 14-16

ii.2. Whether the Board’s decision to retain the adverse remarks during the review of the petitioner's representation was arbitrary and violated the principles of natural justice

pp. 13-14

03Law Applied

The Court primarily applied the principles governing the recording of Annual Confidential Reports (ACRs) as established in Dev Dutt v. Union of India, which mandates the communication of all entries to the employee

p. 6

Adverse remarks must be based on specific instances to allow the officer an opportunity to correct themselves (M.A. Rajasekhar v. State of Karnataka)

p. 15

The competent authority must act fairly, objectively, and provide guides for improvement rather than recorded opinions in a vacuum (Sukhdeo v. Commissioner, Amaravati Division and State of UP v. Yamuna Shankar Misra)

p. 11, 15

Provisions in the judgment · 1

Right to Information Act, 2005 not specified

04Reasoning

The Court observed that the Accepting Authority’s remarks were a "mere stroke of pen" that cast "evil social consequences" without any supporting evidence or prior warnings

p. 12

The court found a stark contradiction between the Reporting Officer's positive assessment and the Accepting Authority's unsubstantiated label of the petitioner as a "liar"

pp. 12-13

Crucially, the Board admitted during proceedings that no records existed to justify the remarks, rendering the Board's unanimous resolution to retain the entry a "mockery" of its appellate powers

p. 8, 14

The court reasoned that an adverse remark lacking specific instances of misconduct or failure to perform duty fails the test of legality

pp. 15-16