UNION OF INDIA Vs. SAMIR KUMAR

JUDGEMENT

(1.) The respondent herein Sri Samir Kumar had joined Border Roads Organization (BRO) as Assistant Executive Engineer (E&M) and in the course of his employment he was promoted to the post of Executive Engineer (E&M) and was given foreign posting of two years, besides being awarded commendation certificates and medals by the Govt. of India. The Non-Functional Section Grade (NFSG) at the grade pay of Rs. 7,600.00 per month became due to him with effect from 27.06.2010 and thereafter to Non-Functional Upgradation (NFU) at the grade pay of Rs. 8,700.00 per month with effect from 01.07.2011. For conferment of such benefits, the bench mark in the gradings recorded in the Annual Confidential Reports (ACR) for the preceding five years was required to be "Very Good". However, for the periods from 01.04.2006 to 31.03.2007; 01.04.2007 to 28.11.2007 and 29.11.2007 to 31.03.2008, the final gradings recorded by the Accepting Officer were "Good", "Average", "Good" respectively. To be precise, for the period from 01.04.2006 to 31.03.2007, the gradings recorded by the Initiating Officer, Technical Officer/Reviewing Officer and the Accepting Officer were "Outstanding", "Very Good", "Good" respectively. For the period from 01.04.2007 to 28.11.2007, the officers concerned gave gradings as "Very Good", "Very Good", "Average" respectively and for the period from 29.11.2007 to 31.03.2008, it was recorded as "Very Good", "Average", "Good" respectively.

(2.) The respondent was served with the letter dated 25.10.2010, enclosing therewith photocopies of the ACRs relating to the three periods aforementioned, containing the entries/gradings recorded therein. This letter of 25.10.2010 was issued in terms of the Office Memorandum dated 13.04.2010 issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions where instructions were made that if an employee is to be considered for promotion in a future DPC and his ACRs for the period prior to 2008-2009, which would be reckonable for assessment of his fitness, contained final gradings which are below the bench mark for his next promotion, the concerned employee has to be given a copy of the relevant ACR for his representation before such ACRs are placed before the DPC. As the name of the respondent was being considered for Modified Assured Career Progression (MACP) to the next grade, the final gradings given by the Initiating Officer/Reviewing Officer/Accepting Officer in his ACRs for the three periods mentioned above, which were below the bench mark, were made available to him, enabling the respondent to make representation. The respondent submitted representation on 26.11.2010 for upgradation of the gradings to the bench mark level of "Very Good", by expunging the adverse entries. Said representation was rejected on 27.7.2011. Another representation was made on 28.11.2011 for reconsideration of his case, the fate of which is not known from the available records. Aggrieved, the respondent instituted the related WP(C) 6678/2013 with prayer for quashing of the adverse remarks in his ACRs for the periods 01.04.2006 to 31.03.2007; 01.04.2007 to 28.11.2007 and 29.11.2007 to 31.03.2008. Prayer was also made for quashing of the Order dated 27.07.2011 rejecting his representation dated 26.11.2010 and for directions to the appellants herein to grant NFSG at the grade pay of Rs. 7,600.00 per month with effect from 26.3.2010 and NFU at the grade pay of Rs. 8,700 per month with effect from 1.7.2011.

(3.) In the backdrop of the facts of the case and on consideration of the law relating to the recording of ACRs, as decided by the Supreme Court in the decisions referred to by the learned Single Judge, the writ petition was allowed by remanding the matter for fresh consideration of the case of the respondent for grant of NFSG at the grade pay of Rs. 7,600 per month with effect from 27.06.2010 and NFU at the grade pay of Rs. 8,700.00 per month with effect from 01.07.2011 by the Screening Committee at par with his batch mates. A further direction was made that the gradings given in the ACRs for the periods mentioned above shall not be taken into account by the Screening Committee and the suitability of the respondent be independently assessed on the basis of the observations made in the judgment and in accordance with law. The gradings recorded in the ACRs for the period from 1.4.2006 to 31.3.2007; 1.4.2007 to 28.11.2007 and 29.11.2007 to 31.3.2008, along with the order dated 27.7.2011 were quashed. Aggrieved, the present appeal has been preferred by the Union of India and Others.