High Court
Case Details
WP(C) 4548/2012 BEFORE HON’BLE MR. JUSTICE I. A. ANSARI HON’BLE DR. (MRS.) JUSTICE INDIRA SHAH Judgment and Order (Ansari, J) The material facts, giving rise to the present writ petition, made under Article 226 of the Constitution of India, may, in brief, be set out as under: The petitioner came to be appointed, on 18-11-1982, as Assistant Conserv (i) ator of Forest, Government of Assam, and he was promoted, on 21-11-1986, as Depu ty Conservator of Forests. The State Government published, on 25-08-2005, a draf t gradation list showing inter se seniority of Deputy Conservator of Forests as on 01-08-2005. (ii) The Union Public Service Commission (hereinafter referred to as ’UPSC’) constituted, in the year 2009, a Selection Committee to recommend suitable offic ials from State Forest Service for promotion to the Indian Forest Service for th e year 2008, the number of vacancies, for carrying out promotion to the Indian F orest Service, being three for the year 2008. (iii) As the zone of consideration is taken 3 times the number of vacancies av ailable, 9 names were to be considered for filling up the said 3 vacancies for t he year 2008. The names of the writ petitioner as well as the 4th respondent her ein were included amongst the incumbents, whose candidature was placed before th e Selection Committee for consideration. (iv) The Selection Committee convened its meeting to recommend the names of t he State Forest Service Officials for promotion to the Indian Forest Service for the year 2008. Promotion from the State Forest Service to the Indian Forest Ser vice (hereinafter referred to as ’IFS’) is governed by the Indian Forest Service (Appointment by Promotion) Regulations, 1966 (hereinafter referred to as the ’P romotion Regulations’) and the criterion for such promotion is merit-cum-suitabi lity. (v) Regulation 5 (3AA) of the Promotion Regulations provide for the manner o f promotion to the State Forest Service Officials to the IFS. In terms of Regula tion 5(3AA), the Selection Committee shall classify the eligible officers as ’Ou tstanding’, ’Very Good’, ’Good’ or ’Unfit’, as the case may be, on the basis of overall relative assessment of their service records. Thus, the Annual Confident ial Reports (hereinafter referred to as ’ACR(s)’) of the last 5 years, immediate ly preceding the year of selection, amongst other documents, and records, pertai ning to the service of the candidates, formed the foundation for evaluation of r elative merit of the candidates for their ultimate categorization. (vi) The ACR of the State Government officials, in Assam, is recorded in accordance with the provisions of the Assam Services (Confidential Rolls) Ru les, 1990 (hereinafter referred to as ’the ACR Rules’) framed under Article 309 of the Constitution of India, which ordain the procedure for writing and maintai ning confidential report, review and acceptance thereof as well as consequential grading of the officer concerned. Rule 2(c) of the ACR Rules defines confidenti al report to be one as drawn up in terms with the procedure laid down in Rule 5 of the ACR Rules, which, in turn, contemplates that a confidential report, conta ining the appraisal of the performance, character, conduct and qualities of ever y Government employee, shall be written for each financial year, ordinarily, wit hin, at the latest, two months of the close of the financial year. Rule 6 of the ACR Rules envisages that the confidential report shall be reviewed by the revie wing authority within one month of its being written. Sub-Rule (3) of Rule 6 mak es the reviewing authority or accepting authority, as the case may be, competent to review the confidential report if the authority concerned has seen the perfo rmance of the employee for, at least, 90 days during the period for which the re port has been written. The confidential report, upon review, shall, under Rule 7 of the ACR Rules, be accepted with such modification as may be considered neces sary and countersigned by the accepting authority concerned within one month of its review. (vii)
Legal Reasoning
The meeting of the Selection Committee, constituted by the UPSC, was convened, on 08-12-2009, to consider the cases of the suitable eligible off icers of the State Forest Service including the cases of the petitioner as well as 4th respondent and to recommend 3 officials of the State Forest Service for p romotion to the Indian Forest Service. Neither the petitioner nor the 4th respon dent was found suitable for promotion and their names were accordingly did not f igure in the list of recommendees for promotion to the IFS. (viii) Acting on the recommendations, so made, Ministry of Environment and Fore st, Government of India, issued a notification, on 25-08-2010, promoting the sai d three officials to the Indian Forest Service, these three officials being, Sri Hem Kanta Talukdar, Sri Chitta Ranjan Borbora and Sri Modhusudhan Singha and th ese three persons were accordingly promoted to the Indian Forest Service and all ocated the then Assam-Meghalaya Joint Cadre by notification, dated 31-08-2010, i ssued, in this regard, by the Director, Ministry of Environment and Forests, Gov ernment of India. All the three persons, who were so promoted, were junior to th e petitioner in the gradation list, which had been published, as already indicat ed above, on 25-08-2005. 2. In the month of April, 2010, the petitioner came to know from reliable s ource that his grading, in the ACR of 2002-03, was given ’Good’ by the reporting authority, but the reviewing authority downgraded it to ’Average’ without assig ning any reason therefor. The petitioner also came to learn that in his ACR, per taining to the period 30-09-2004 to 31-03-2005, the reviewing officer had assign ed him the grading ’Average’, though all the attributes, recorded by the recordi ng officer under various parameters, indicated that the petitioner could have ve ry well been graded as ’Good’. This apart, the petitioner also came to learn tha t his performance, for the period from 01-04-2004 to 29-04-2004 and also for the period from 18-08-2005 to 05-01-2006, remained without being appraised inasmuch as the petitioner’s ACRs for the said two periods, namely, 01-04-2004 to 29-04- 2004 and 18.08.2005 to 05.01.2006, had neither been prepared nor necessary steps were taken, in this regard, by the reporting officer without any discernible re ason. 3. The downgrading of the ACR of the petitioner, for the period 2002-2003 f rom ’Good’ to ’Average’ by the accepting authority without assigning any reason therefor, was, in effect, an adverse entry, particularly, in the context of Regu lation 5(3AA) of the Promotion Regulations, which mandates classification of eli gible officers as ’Outstanding’, ’Very Good’, ’Good’ or ’Unfit’ on the basis of overall assessment of the relative merit of their service records. 4. In the face of the classification, which is required to be made by Regul ation 5(3AA), any entry, which is below ’Outstanding’, is an adverse entry and i t will render a person ’Unfit’ for promotion to the IFS. The said moderated entr y, downgrading the petitioner’s ACRs from ’Good’ to ’Average’, for the year 2002 -03, was never communicated to the petitioner at any point of time, though such an entry was an adverse entry and ought to have been communicated to the petitio ner in terms of Rule 10 of the Assam Services (Confidential Rolls) Rules, 1990. The petitioner, then, filed, on 19-07-2010, a representation to the Comm 5. issioner and Secretary, Environment and Forests, Government of Assam, seeking re view of his ACRs to ascertain if there was any down grading of any entry, which was adverse in nature and to rectify if there was any such adverse entry. By his order, dated 16-09-2010, the Commissioner and Secretary, Environm 6. ent and Forests, Government of Assam, upgraded the downgraded entry of the petit ioner, for the period 2002-03 as well as for the period 30-09-2004 to 31-03-2005 , from ’Average’ to ’Good’ and further directed the concerned recording officers to record the ACRs of the petitioner for the period, which was left unrecorded, i.e., for the periods from 01-04-2004 to 29-04-2004 and from 18-08-2005 to 05-0 1-2006. 7. Pursuant to the order, so issued on 16-09-2010, the ACRs, for the period s from 01-04-2004 to 29-04-2004 and 18-08-2005 to 05-01-2006, which had not been appraised, was subsequently recorded and the petitioner was assigned the gradin g ’Very Good’ and ’Outstanding’ for the periods from 01-04-2004 to 29-04-2004 an d from 18-08-2005 to 05-01-2006, respectively. 8. Thereafter, the 4th respondent, too, preferred representation to the Com missioner and Secretary, Environment and Forests, Government of Assam, seeking u pgradation of his downgraded entries for the period 2002-03, 2003-04, 2004-05, 2 005-06 and 2006-07 and the entries, recorded therein, were, eventually, upgraded to ’Very Good’ by an order, issued, in this regard. Following the upgradation of entries of the petitioner, the Principal Se 9. cretary, Government of Assam, addressed a communication, on 21-05-2001, to the U PSC requesting the UPSC to hold Review Selection Committee for reviewing the sel ect list of the year 2008. Earlier thereto, the petitioner as well as the 4th re spondent had moved the Central Administrative Tribunal, Guwahati Bench, seeking directions to be issued to the UPSC to hold meeting of the Review Selection Comm ittee for the purpose of considering the cases of the petitioner and the 4th res pondent for promotion to the IFS. The present petitioner’s application gave ris e to Original Application (in short, ’OA’) No. 211 of 2011, which was disposed o f by the learned Tribunal, on 26-09-2011, by directing the UPSC to hold Review S election Committee within a period of three months from the date of receipt of t he order so passed by the learned Tribunal. 10. Pursuant to the order, so passed by the learned Tribunal, a Review Selec tion Committee was constituted to review the select list of the year 2008. The R eview Selection Committee accordingly convened its meeting on 09-12-2011 and rec ommended the case of 4th respondent for promotion to the IFS for the year 2008. This recommendation was put to challenge by the present petitioner by making an application under Section 19 of the Central Administrative Tribunals Act, 1985, at Guwahati, which gave rise to Original Application (in short, ’OA’) No. 64 of 2012. The said application has, however, been dismissed by order, dated 05-09-20 12. Aggrieved by this order, dated 05-09-2012, dismissing his OA, the petitioner has made the present writ petition, under Article 226 of the Constitution of In dia, seeking issuance of appropriate directions. 11. We have heard Mr. N. Nath, learned counsel for the petitioner, and Mr. D . C. Chakraborty, learned Central Government counsel, appearing for respondent N o. 2. We have also heard Mr. I. Hussain, learned Central Government counsel, ap pearing for respondent No. 1, Mr. P. S. Deka, learned Additional Senior Govt. Ad vocate, appearing for respondent No. 4, and Mr. D. K. Mishra, learned Senior cou nsel, appearing as amicus curiae. The first contention, raised on behalf of the petitioner, is that there 12. has been violation of Regulation 5(3AA) of the Indian Forest Service (Appointmen t by Promotion) Regulations, 1966 (which is being referred to as the ’Promotion Regulations’), inasmuch as the Review Selection Committee, contends Mr. Nath, ha s not considered, in accordance with law, the petitioner’s 5 years record of ser vice immediately preceding the year of selection, i.e., the year 2008. 13. Resisting the submission, so made, the respondents contend, in tune with each other, that the Review Selection Committee did consider, in accordance wit h the statutory obligations and the ’guidelines’ issued, in this regard, by the UPSC, i.e., respondent No.2, the records of the petitioner’s service for the req uisite periods. 14. Let us, now, determine the correctness of the rival submissions, which h ave been made before us. 15. While considering the question as to whether the Review Selection Commit tee has dealt with the petitioner’s case and considered his ACR(s) for the requi site period of 5 years in accordance with the requirements of law, what needs t o be noted, at the very outset, is that a Review Selection Committee has, nowher e, been defined under the Promotion Regulations or under the ’guidelines’, which have been issued by the UPSC. However, Regulation 2(d) of the Promotion Regula tions defines a ’Committee’ to mean the Committee set up in accordance with Regu lation 3. In order, therefore, to find out as to what a ’Committee’ would, in t he context of the Promotion Regulations, mean, one is necessarily required to tr avel to Regulation 3, which deals with the constitution of the Committee for mak ing recommendation from the State Forest Service (which is being referred to as, ’SFS’). The relevant provisions of Regulation 3 read as under: (cid:28)3. Constitution of the Committee to make selection- (1) There shall be constituted for each of the Joint Cadres a Committee consi sting of the Chairman of the Commission or where the Chairman is unable to atten d, any other member of the Commission representing and the following other membe rs namely:- (a) For States other than Joint Cadres and Union Territories - i) The Chief Secretary or Additional Chief Secretary; ii) Secretary to the Government dealing with Forests; iii) Principal Chief Conservator of Forests; iv) A senior member of the Service not lower in rank than a Conservator of Forests; and v) A nominee of the Government of India not below the rank of a Joint Secretary. (aa) For Joint Cadre :- i) Chief Secretaries to the Governments of the Constituent States. ii) Chief Conservator of Forests of the Constituent States. ii) A nominee of the Government of India not below the rank of a Join t Secretary. (b) For Union Territories - (1) Joint Secretary in the Ministry of Home Affairs dealing with Union Territori es; (2) Inspector-General of Forests or Dy. Inspector General of Forests, (3) Chief Secretary of one of the Union Territories, (4) A Senior member of the Service not lower than in rank than a Conservator o f Forests: Provided that the Central Government may, if deemed necessary, after consultati on with the State Government concerned alter the composition of the Committee. (2) The Chairman or the member of the Commission shall preside at all meetin gs of the committee at which he is present. (3) The absence of a member, other than the Chairman or member of the commissi on, shall not invalidate the proceedings of the Committee if more than half the members of the Committee had attended its meetings. (cid:29) 16. From a bare reading of Regulation 3, it becomes clear that the Selection Committee, in order to consider cases of promotion from State Forest Service (i .e., ’SFS’) to Indian Forest Service (i.e., ’IFS’), has to be constituted in ter ms of Regulation 3. As far as the procedures for selection and preparation of S elect list is concerned, the same have been laid in Regulation 5. Mr. Nath, lea rned counsel, appearing for the petitioner, is correct in contending that a Revi ew Selection Committee is nothing, but a Committee constituted under Regulation 3 of the Promotion Regulations. What logically follows from the above discussion is that a Review Select 17. ion Committee, being a Committee constituted under Regulation 3, has no option b ut to follow (same as a Committee constituted under Regulation 3) the procedure laid down in Regulation 5 for the purpose of making selection and for preparing select list of officers of the SFS to be promoted to IFS. A Review Selection Co mmittee, otherwise also, must proceed to take a decision as regards selection as if it is considering a given case afresh and for the first time. The support, sought to be received, in this regard, by Mr. Nath, learned counsel, from the ca se of Gurdial Singh Fiji vs. State of Punjab, reported in (1979) 2 SCC 368, and UPSC vs. Hiranyalal Dev (AIR 1988 SC 1069), is not misplaced inasmuch as the app ellant, in Gurdial Singh Fiji’s case (supra), was not considered for promotion t o IAS on the ground of adverse entry in his ACR(s) for the period 1966-67 agains t which the appellant’s representation was pending disposal. The Supreme Court held the non-consideration of the appellant’s representation as illegal and dire cted reconsideration of the appellant’s case by taking into consideration the Go vt. decision on his representation and his service records up to date. The rele vant observations, made by the Supreme Court, in Gurdial Singh Fiji’s case (supr a), read as under: 19. In matters of this nature, particularly when the Select lists have to be pre pared and reviewed from year to year, it becomes difficult to work out the logic al consequences of holding that the case of any particular officer ought to be r econsidered. But, inevitably, for reasons mentioned above, the case of the appel lant shall have to be considered afresh by the Selection Committee. How best to do it has to be left to its wise discretion in the matter of details, but in ord er to eliminate, insofar as one may, chances of yet another litigation we ought to indicate the broad frame-work within which the Committee should act and the p reliminary steps which the Government must take in order to facilitate the Commi ttee’s task. 20. In the first place, the State Government shall consider and dispose of withi n two months from today the representations made by the appellant on January 23, 1969 and December 19, 1971 in regard to the adverse report in his confidential roll, for the year 1966-67. We are hopeful that the High Court will cooperate wi th the Government in the disposal of the representations. The Selection Committe e will, within three months thereafter, decide whether the appellant should be i ncluded in the Select list as of May 11, 1973. That question has to be decided i n accordance with the relevant regulations by applying the test of merit and sui tability cum-seniority. For deciding the question of appellant’s merit and suita bility, the Selection Committee will take into consideration the Government’s de cision on his representations and his service record up-to-date. If the Committe e decides that he is not suitable for inclusion in the Select list and, should t herefore, be superseded, it shall record its reasons for the proposed supersessi on. If, on the other hand, the Committee decides to include his name in the Sele ct list, he will be entitled to rank in that list in accordance with his seniori ty as of May 11, 1973 unless, in the opinion of the Committee, there is a junior officer of exceptional merit and suitability who may be assigned a higher place . The Selection Committee will review the list for 1973 in accordance with these directions. The Union Public Service Commission will thereafter be consulted in accordance with the regulations. The Select list as finally approved by the Com mission will form the Select list of the members of the State Civil Service. hasis is added) 18. The reference made by Mr. Nath, learned counsel for the petitioner, to t he case of Hiranyalal Dev (supra) is also not misplaced wherein the appellant wa s not considered suitable for promotion to IPS due to some adverse entries, whic h were not communicated to him. Subsequently, the adverse entries were communica ted and the same were expunged after considering the representation of the appel lant. The relevant observations, appearing at para 5 and 9 of Hiranyalal Dev (su (Emp pra), read as under: (cid:28)5. It cannot be gainsaid that the Selection Committee could not have taken into consideration the adverse remarks entered in the records which had not been com municated to Respondent 1, and in any case could not have taken into considerati on these remarks which were subsequently set aside by the State Government. The legal effect of the setting aside of the adverse remarks would be that the remar ks must be treated as non-existent in the eye of law. The Selection Committee ha d, therefore, fallen in error in taking into account these adverse remarks which in the eye of law did not exist and which could not have been lawfully taken in to consideration. However, the fact that the Selection Committee erred in this b ehalf does not necessarily mean that Respondent 1 should have been categorised o r considered as (cid:28)very good’ vis-a-vis others who were also in the field of choic e. How to categorise in the light of the relevant records and what norms to appl y in making the assessment are exclusively the functions of the Selection Commit tee. The Tribunal could not make a conjecture as to what the Selection Committee would have done or to resort to conjecture as to the norms to be applied for th is purpose. The proper order for the Tribunal to pass under the circumstances wa s to direct the Selection Committee to reconsider the merits of Respondent 1 vis -a-vis the official who was junior to him and whose name was Shri Sardar Pradeep Kar. Instead of doing so, the Tribunal has held that Respondent 1 should be dee med to have been included in the impugned select list prepared in 1983, at least in the place in the order of his seniority on the basis of the assessment of hi s C.C. Rolls, and has issued a direction to appoint Respondent 1 with effect fro m the date on which Shri Kar was appointed. The jurisdiction to make the selecti on vested in the Selection Committee. The Selection Committee had to make the se lection by applying the same yardstick and norm as regards the rating to be give n to the officials, who were in the field of choice by categorising the concerne d officials as (cid:28)outstanding (cid:29), (cid:28)very good (cid:29), (cid:28)good (cid:29) etc. This function had also to be discharged by the Selection Committee by applying the same norm and tests an d the selection was also to be made by the Selection Committee as per the releva nt rules. The powers to make selection were vested unto the Selection Committee under the relevant rules and the Tribunal could not have played the role which t he Selection Committee had to play. The Tribunal could not have substituted itse lf in place of the Selection Committee and made the selection as if the Tribunal itself was exercising the powers of the Selection Committee, as has been done w hich is evident from the passage extracted from para 16 of the judgment: (cid:28)We have also gone through the C.C. Roll, of the two junior officers, Respondent s 11 and 12 for the same period of five years including 1982-83. We are of the d efinite view that there is absolutely no reason after expunction of the adverse remarks to hold that the applicant deserved a lower classification than these tw o respondents, who were junior to him. (cid:29) The proper course to adopt was the course which was indicated by this Court in G urdial Singh Fijji v. State of Punjab wherein this Court directed that the case of the appellant be considered afresh by the Selection Committee indicating the broad framework within which the Committee should act and the preliminary steps the Government should take in order to facilitate the Committee’s task. In Stat e of Mysore v. Syed Mahmood a dispute about promotion of certain officers had be en raised. In writ petitions filed by the aggrieved officers the High Court pass ed orders directing the State Government to promote them from the respective dat es on which respondents junior to them were promoted. The orders passed by the H igh Court were set aside by this Court and a direction was issued to the State G overnment to consider whether the said officers should have been promoted on the relevant dates. It was held: (cid:28)The promotions were irregularly made and they were, therefore, entitled to ask the State Government to reconsider their case. In the circumstances, the High Co urt could issue a writ to the State Government compelling it to perform its duty and to consider whether having regard to their seniority and fitness they shoul d have been promoted on the relevant dates when officers junior to them were pro moted. Instead of issuing such a writ, the High Court wrongly issued writs direc ting the State Government to promote them with retrospective effect. The High Co urt ought not to have issued such writs without giving the State Government an o pportunity in the first instance to consider their fitness for promotion in 1959 . (cid:29) Xxx xxx xxxx 9. In place of the order quoted hereinabove we substitute an order in the follow ing terms viz.: (cid:28)The Selection Committee shall reconsider the impugned select list prepared in 1 983 as if it was deciding the matter on the date of the selection on the footing that the adverse remarks made against Respondent 1 which were subsequently set aside did not exist in the records and consider the question as to whether he wo uld have been appointed or Respondent 11 Shri Sardar Pradeep Kar would have been appointed on the basis of the categorization to which each of them was entitled having regard to the C.C. Rolls (ignoring the adverse remarks against Responden t 1 which were subsequently quashed) and pass appropriate orders in the light of the decision taken on this point. If Respondent 1’s claim is accepted upon reco nsideration in the light of the aforesaid exercise, the order of appointment sho uld provide for his appointment with effect from the date on which he would have been appointed if he was selected when the original selection was made in 1983 and he should be given all the benefits. The Selection Committee shall complete its exercise within two months from the date of this order. There will be no ord er regarding costs. (cid:29) (Emphasis added) 19. Situated thus, it becomes clear that the role of a Review Selection Comm ittee is exactly the same as the Selection Committee and the Review Selection Co mmittee shall be treated as Body constituted under Regulation 3 for the purpose of carrying out the selection and making recommendations of the officers of the SFS to be promoted to IFS. 20. In the light of what has been discussed above, let us, now, revert to Re gulation 5(3AA), which lays down as to how a Select Committee shall proceed with the consideration of a case for promotion from SFS to IFS. Regulation 5(3AA) r eads, (cid:28)The selection Committee shall classify the eligible officers as ’Outstand ing’, ’very good’, ’good’ or ’Unfit’, as the case may be, on overall relative as sessment of their service record. (cid:29) 21. A Selection Committee, be the Committee constituted for the first time t o consider the cases of promotion or as a Committee, constituted for the purpose of review of a case, or a number of cases for promotion, is, in the light of Re gulation 5(3AA), under statutory obligation to classify eligible officers into f our categories, as indicated above, namely, ’Outstanding’, ’very good’, ’good’ o r ’Unfit’, as the case may be, on overall relative assessment of their service r ecords. 22. The term ’service records’, we may hasten to point out, has not been de fined in the Promotion Regulations. The UPSC has, therefore, issued ’guidelines ’, which prescribe what service records would mean and signify. The UPSC ’guide lines’, issued in this regard, and contained in paragraph 2.3, read as follows: (cid:28)2.3 In accordance with Regulation 5(4) of the Promotion Regulations, the Select ion Committee has to classify the eligible officers as ’Outstanding’, ’very good ’, ’good’ or ’Unfit’ as the case may be on an overall relative assessment of the ir service records (i.e., ACRs and the documents kept therein by the competent a uthority). For making an overall relative assessment, the Committee will not dep end solely on the grading recorded by the reporting/reviewing/accepting authorit y but will make its independent assessment of the service records of the eligibl e officers as per the procedure indicated below. (cid:29) (Emphasis supplied) 23. nder: (cid:28)4.1 The Selection Committee will go through the records of the eligible officer s and make their assessment after deliberating on the quality of the officer as indicated in the various columns recorded by the Reporting/Reviewing officer/Acc epting Authority in the ACRs for different years and then finally arrive at the classification to be assigned to each officer. The Selection Committee would tak Coupled with the above, paragraph 4.1 of the UPSC ’guidelines’ read as u e into account orders regarding appreciation for the meritorious work done by th e concerned officers. Similarly it would also keep in view orders awarding penal ties or any adverse remarks communicated to the officer, which, even after due c onsideration of his representation, have not been completely expunged. (cid:29) (Emphasis supplied) 24. From what is embodied in paragraph 2.3 of the UPSC ’guidelines’, it clea rly transpires that service records will mean not only the ACR(s) of a candidate , but also the documents kept/maintained in connection therewith by the competen t authority and that the Committee, constituted under Regulation 3, will not, in order to make overall relative assessment, depend solely on the grading recorde d by the reporting or the reviewing authority, but will make an independent asse ssment of the service records of the eligible officers as per the procedure indi cated by the UPSC ’guidelines’. 25. In terms of the UPSC ’guidelines’, the Selection Committee, or the Revie w Selection Committee, as the case may be, shall go through the service records of each of the eligible officer with special reference to the performance of the officers during the last 5 years immediately preceding the year for which the s elect list is required to be prepared, and, upon deliberations, make its own ass essment of the candidate and record, in the assessment sheet, the gradings, whic h it considers, in the light of Regulation 5(3AA), as appropriate. The UPSC’s ’guidelines’ will clearly indicate that the service records 26. of each of the officers would have to be considered by the Selection Committee w ith, of course special reference to the performance of the officer during the la st 5 years, immediately preceding the year for which the select list is required to be prepared, and deliberate on the quality of the officers and finally arriv e at a classification to be assigned to each officer in order to ensure objectiv ity for the purpose of evaluation and assign accordingly any of the four grading s mentioned in Regulation 5(3AA), namely, ’Outstanding’, ’very good’, ’good’ or ’Unfit’. 27. ’Deliberation’, according to Oxford Advanced Learner’s Dictionary, 6th E dition, means, ’the process of carefully considering’ or ’discussing’. Chambers Twentieth Century Dictionary, 1979 Edition, defines ’deliberation’ as ’act of de liberating, mature reflection’. According to Webster’s Comprehensive Dictionary, Encyclopedic Edition, ’deliberation’ means, ’thoughtfulness and care in decidin g or acting’. In the light of what the word ’deliberation’ means and convey, it clearl 28. y follows, as rightly contended by Mr. Nath, learned counsel, that in order to s atisfy the test of ’overall assessment’, there must be a ’careful consideration’ or careful discussion’ on the quality of the officers concerned with regard the various attributes recorded in their respective ACR(s) and, as such, deliberati on or discussion must precede the assigning of grading by the Selection Committe e. 29. It is the admitted case of the UPSC that the petitioner was categorized as ’good’ on the basis of overall relative assessment of his performance, as ref lected under various columns of his ACR(s), the ACR(s) being for the period from 2002 to 2003 and 30.09.2004 to 31.03.2005 and, on the basis of the assessment o f the petitioner’s ACR(s) for the said period of barely 1 ‰ years, the petitione r was not recommended for promotion. Apart from the fact that the above averments of the UPSC, made in its af 30. fidavit, has not been disputed or traversed by any of the other respondents, inc luding respondent No. 4, who is hereinafter referred to as the ’private responde nt’, the minutes of the meeting of the Review Selection Committee, constituted u nder Regulation 3, to review the select list of 2008 and consider, amongst other s, the cases of the petitioner and the private respondent is, in this regard, of great relevance. Para 3.1, which contains the minutes of the meeting of the Re view Selection Committee, being extremely important, is reproduced below: (cid:28)3.1 n compliance with separate orders of the Hon’ble Tribunal and also based on thei r representations, forwarded the upgraded ACRs of The Committee were further informed that the Government of Assam have, i Shri Arup Kumar Das for the year 2002-03 from ’Average’ to ’good’ and fo (i) r the period from 30.09.2004 to 31.03.2005 from ’Average’ to ’good’. (ii) 006-07 from ’good’ to ’very good’. (iii) good’ to ’very good’. (cid:29) Shri Amrit Kumar Das for the period from 14.11.2007 to 12.03.2008 from ’ Shri R C Goswami for the period 2002-03, 2003-04, 2004-05, 2005-06 and 2 Close on the heels of what paragraph 3.1 of the minutes of the meeting o 31. f the Review Selection Committee, reproduced above, reflects, paragraph 5.1 and 5.2, which relate to the present petitioner, and paragraph 6.1 and 6.2, which re late to the private respondent, being relevant for correct appreciation of the m anner in which the Review Selection Committee has dealt with the matter, are als o reproduced below: (cid:28)Shri Arup Kumar Das 5.1 The Review Committee first considered the case of Sh. Arup Kumar Das. Th e Review Committee noted that the original Selection committee has graded Sh. Ar up Kumar Das as ’good’ on an over-all relative assessment of his service records . 5.2 The Review Committee examined the records of Sh. Arup Kumar Das upto the year 2006-07 for the Select list of 2008 as the crucial date for reckoning the eligibility of officers is 01.01.2008. The Review Committee took into considerat ion the upgraded ACRs of Sh. Arup Kumar Das for the period mentioned in para 3.1 (i) above. On an overall assessment of his performance as reflected under vario us columns of the upgraded ACRs, the Review Committee graded Shri Arup Kumar Das as ’good’. On the basis of this assessment, the Review Committee did not recomm end any change in the Select list of 2008 prepared on 08.12.2009 in respect of S h. Arup Kumar Das. Shri R. C. Goswami The Review Committee next considered the case of Sh. R. C. Goswami. The 6.1 Review Committee noted that the original Selection Committee has graded Sh. R. C . Goswami as (cid:28)Good (cid:29) on an over-all relative assessment of his service records. 6.2 The Review Committee examined the records of Sh. R. C. Goswami upto the year 2006-07 for the Select list of 2008 as the crucial date for reckoning the e ligibility of officers is 01.01.2008. The Review Committee took into considerati on the upgraded ACRs of Sh. R. C. Goswami for the period mentioned in para 3.1 ( ii) above. On an overall assessment of his performance reflected under various columns of the upgraded ACRs, the Review Committee graded Shri R. C. Goswami as (cid:28)Very Good (cid:29). On the basis of this assessment, the Review Committee recommended his name for inclusion in the Select list of 2008 for promotion to the IFS of As sam Meghalaya Joint Cadre (Assam segment) and placed his name at Sl. No. 1A of t he List prepared on 08.12.2009. (cid:29) 32. If the contents of paragraphs 5.1 and 5.2, which relate to the service r ecords of the present petitioner, vis-à-vis paragraph 6.1 and 6.2, which relate to the service records of the private respondent, are considered together in the light of what stands recorded in paragraph 3.1 (which we have already quoted ab ove), it leaves no room for doubt that that, so far as the petitioner was concer ned, what the Review Selection Committee had considered was merely his upgraded ACR(s) for the period 2002-2003 and for the period from 30.09.2004 to 31.03.2005 , i.e., for the period of 1 ‰ years, whereby the downgrading of the petitioner’s ACR from ’good’ to ’Average’ was upgraded and restored to ’good’ from ’Average’ . As against this, the ACR(s) of the private respondent was considered for the whole period of 5 years, namely, for the period from 2002 to 2003, 2003 to 2004, 2004 to 2005, 2005 to 2006 and 2006 to 2007 and, on the basis of all these five years of ACRs, he (private respondent) was graded ’very good’ from ’good’. 33. While, thus, the private respondent’s ACRs of all the 5 years, immediate ly preceding the year of selection, had been considered, the petitioner’s ACR of only for the period of 1 ‰ years, as indicated above, had been considered by th e Review Selection Committee. 34. Situated thus, it is clear that the Review Selection Committee committed two errors, namely, (i) it omitted to notice the fact that it was under legal o bligation to consider the ACRs of the petitioner as well as of the private respo ndent for the entire period of 5 years, including that part or portion of 5 year s, where any change/changes, in the grading, was/were recorded in the ACRs and ( ii) the Review Selection Committee completely ignored the fact that apart from u pgradation of the ACRs of the petitioner, for the said period of 1 ‰ years (i.e. , for the period from 2002 to 2003 and for the period from 30.09.2004 to 31.03. 2005), the petitioner’s ACRs, for the period from 01.04.2004 to 29.04.2004 and 1 8.08.2005 to 05.01.2006, had been subsequently upgraded, as already indicated ab ove, by order, dated 16.09.2010, inasmuch as the performance of the petitioner, for the period from 01.04.2004 to 29.09.2004 and also for the period from 18.08. 2005 to 05.01.2006 (which had gone unappraised), came to be recorded, pursuant t o the order, dated 16.09.2010, passed by the Commissioner and Secretary, Environ ment and Forest, Government of Assam, and the petitioner was, pursuant to the or der, dated 16.09.2010, assigned the grading ’very good’ for the period from 01.0 4.2004 to 29.09.2004 and he (petitioner) was graded ’Outstanding’ for the period from 18.08.2005 to 05.01.2006. 35. To put it a little differently, the Review Selection Committee considere d, unlike the case of the private respondent, the petitioner’s upgraded ACRs for the brief period of 1 ‰ years (i.e., from 2002 to 2003 and 30.09.2004 to 31.03. 2005), and did not consider the period, which had, initially, been left unapprai sed and was, subsequently, assigned the grading of ’very good’ and ’Outstanding’ pursuant to the order, dated 16.09.2010, aforementioned.
Decision
36. In short, the consideration of the petitioner’s case by the Review Selec tion Committee suffers from infraction of Regulation 5(3AA) of the Promotion Reg ulations inasmuch as the Review Selection Committee has not considered the entir e service records of the petitioner anew for the requisite period of 5 years imm ediately preceding the year of selection; more so, when the Review Selection Com mittee has, it is obvious, not taken into account at all the entries in the ACR( s) of the petitioner for the earlier unappraised period from 01.04.2004 to 29.09 .2004 and 18.08.2005 to 05.01.2006, and, thus, the consideration of the petition er’s case by the Review Selection Committee must be held to be in violation of the mandates of the Regulation 5(3AA) and cannot, therefore, be sustained. 37. To put it a little differently, the Review Selection Committee’s apprais al of the case of the petitioner suffers from omission to consider the petitione r’s service records for the requisite period of 5 years in its entirety inasmuch as the Review Selection Committee has considered only the petitioner’s upgraded ACRs for the year 2002-2003 and for the period from 30.09.2004 to 31.03.2005, b ut the Review Selection Committee has omitted to consider the petitioner’s subse quently appraised service records for the period from 01.04.2004 to 29.09.2004 a nd for the period from 18.08.2005 to 05.01.2006. The learned Tribunal, therefore, fell in serious error, in the case at 38. hand, in taking the view that the assessment of the petitioner’s service record was properly done by the Review Selection Committee; whereas, it is glaringly no ticeable that the Review Selection Committee did not do what it was assigned to do or obliged to do in terms of the Promotion Regulations and in the light of th e ’guidelines’, issued, in this regard, by the UPSC. 39. Yet another ground on which the petitioner has impugned the recommendati ons of the private respondent by the Review Selection Committee and non-recommen dation of his case for promotion by the said Committee, in the light of the deci sion reached by the learned Tribunal, is that during the period of 5 years immed iately preceding the year of selection, the appropriate authority had not record ed the various entries in the ACRs of the petitioner. A chart, showing the auth orities, who had acted in the capacity of the Reporting, Reviewing and the Accep ting authorities, in the ACRs of the petitioner from the year 2002 to 2007, as e mbodied in the writ petition, is reproduced below: YEAR ACCEPTING AUTHORITY REVIEWING AUTHORITY REPORTING AUTHORITY 2002-03 CCF 1.4.03 to 30.7.03 PCCF PRINCIPAL SECRETARY --- COMMISSIONER & SECRETARY 23.9.03 to 31.3.04 1.4.04 to 30.9.04 30.9.04 to 31.3.05 1.4.05 to 17.8.05 18.8.05 to 31.3.06 2006-07 CF CCF CF CF CF CCF CF PCCF CCF CCF CCF PCCF CCF --- --- PCCF COMMISSIONER & SECRETARY --- A cautious reading of what have been reproduced above would show that th 40. e ACRs of the petitioner for the period 2002-2003 was written by the Chief Conse rvator of Forests, reviewed by the Principal Chief Conservator of Forests and ac cepted by the Principal Secretary, Department of Environment and Forests; wherea s, the ACR, pertaining to the period 23.09.2003 to 31.03.2004, was written by Co nservator of Forests, reviewed by Chief Conservator of Forests and accepted by t he Commissioner & Secretary, and with regard to the petitioner’s ACR for the per iod from 01.04.2005 to 17.08.2005, it was again the Chief Conservator of Forests , who had acted as the Reporting authority, the Reviewing and the Accepting auth orities being Principal Chief Conservator of Forests and the Commissioner and Se cretary, Department of Environment and Forests. However, for the period from 30. 09.2004 to 31.03.2005, the Reporting authority was, once again, the Conservator of Forests, the Reviewing authority was the Chief Conservator of Forests and the Accepting authority was the Principal Chief Conservator of Forests. 41. The question, therefore, which falls for consideration, is: Whether, in the petitioner’s case, the Conservator of Forests could have acted as the Report ing authority, or it was the Chief Conservator of Forest, who ought to have been the Reporting authority? 42. While considering the question, posed above, we may refer to Rule 2(f) o f the Assam Services (Confidential Rolls) Rules, 1990 (hereinafter referred to a s the ’1990 Rules’), which defines ’Reporting authority’ as the authority, who w as, during the period for which the confidential report is written, immediate su perior to the employee and such other authority as may be specifically empowered , in this behalf, by the Government. Similarly, ’Reviewing authority’ is define d by Rule 2(g) of the 1990 Rules to mean the authority, who was, during the peri od for which the confidential report is written, immediate superior to the Repor ting authority and such other authority as may be specifically empowered, in thi s behalf, by the Government. Rule 2(a) of the 1990 Rules defines ’Accepting aut hority’ as the authority, who was, during the period for which the confidential report is written, immediate superior to the Reviewing authority and such other authority as may be specifically empowered, in this behalf, by the Government. 43. The petitioner, as has been pointed out, is presently serving as Divisio nal Forest Officer (in short, ’DFO’) and he, therefore, belongs to the cadre of Deputy Conservator of Forest (in short, ’DCF’). The immediate superior of a DCF is the Conservator of Forests (in short, ’CF’) and, as such, only CF can initiat e confidential reports of a DCF. Similarly, the immediate superior of CF is the Chief Conservator of Forest (in short, ’CCF’) and the immediate superior of CCF is the Principal Chief Conservator of Forest (in short, ’PCCF’). Accordingly, only CCF and PCCF can act as the Reviewing and Accepting authority, respectively , in respect of a DCF. 44. However, in the case at hand, the ACR(s) of the petitioner were reported /reviewed and accepted by authorities other than the authorities, who were empow ered and authorized by the Rules to do so. Consequently, the ACR(s), prepared by such authorities, as indicated hereinbefore, can not, rightly contends Mr. Nath , learned counsel for the petitioner, form basis for making assessment of the me rit of the petitioner. 45. In support of his contention that the ACR(s), in respect of a DFO can only b e written by the CF, reviewed and accepted by CCF and PCCF, respectively, Mr. Na th has also placed reliance on the case of T N Godavarman vs. Union of India, re ported in (2007) 15 SCC 273. The relevant observations, made by the Supreme Cou rt, in T N Godavarman (supra), read as follows: (cid:28)22. For writing of the confidential reports, the Central Government has, under Section 3 of the All India Services Act, 1951, framed All India Services (Confid ential Rolls) Rules, 1970. According to Rule 2(e), the (cid:28)reporting authority (cid:29) is defined as follows: 2. (e) ’reporting authority’ means the authority who was, during the period for which the confidential report is written, immediately superior to the member of the service and such other authority as may be specifically empowered in this be half by the Government; (cid:29) 23. The (cid:28)reviewing authority (cid:29) is defined in Rule 2(f) as follows: 2. (f) ’reviewing authority’ means the authority who was, during the period for which the confidential report is written, immediately superior to the reporting authority and such other authority as may be specifically empowered in this beha lf by the Government; (cid:29) 24. It seems that Rule 2(e) had been interpreted by the State to mean that the c onfidential report of an officer could be written by a person who is superior to him and also by such other officer who may be specified in this behalf. In view of the latter portion of the said Rule 2(e), the State Government has authorise d officers of service other than of the Forest Department to write the confident ial reports. In this manner, in effect, the administrative control of officers b elonging to the Forest Department is not within the Department itself. 25. The aforesaid Rule 2(e) came up for consideration before this Court in State of Haryana v. P.C. Wadhwa. While interpreting the said Rule 2(e), this Court at p. 1035 observed as follows: (SCC pp. 606-07, para 5) 5. In this connection, it may be pointed out that it is not disputed that the co njunction ’and’ occurring in clauses (e), (f) and (a) should be read as ’or’. Un der clause (e), the ’reporting authority’ may be either immediately superior to the member of the service or such other authority as may be specifically empower ed in this behalf by the Government. The expression ’immediately superior’ obvio usly indicates that the reporting authority should be the immediate superior off icer in the same service to which the member of the service belongs. The positio n is the same as in the cases of ’reviewing authority’ and ’accepting authority’ . So, under the first part of clause (e), the reporting authority of the respond ent could be a person who is immediately superior to him in the police service. (cid:29) 26. It appears to us, and which is logical, that up to the officer of the rank o f Additional Principal Chief Conservator of Forests the reporting authority has to be the immediately superior officer within the Forest Department. For example , for the Assistant Conservator of Forests, the reporting authority can only be the Divisional Forest Officer and for him the reporting authority would be the C onservator of Forests for whom the reporting authority has to be the Chief Conse rvator of Forests and his reporting authority would be Additional Principal Chie f Conservator of Forests and lastly his reporting authority would be the Princip al Chief Conservator of Forests. Likewise the reviewing authority would also be the person within the same Department. It is only in case of the Principal Chief Conservator of Forests that the reporting authority will be a person other than the one belonging to the service because there is no one superior to the Princi pal Chief Conservator of Forests within the service. As far as he is concerned, the reporting authority would be a person who is familiar with the work of Princ ipal Chief Conservator of Forests and that will be the person to whom he reports and who is superior to him in rank and hierarchy. (cid:29) mphasis is added) 46. Mr. S. Sharma, learned counsel for the private respondent, has contended that the petitioner’s ACR(s) for the period 2003-2004 was reviewed by PCCF and accepted by the Principal Secretary, because during the relevant period, the pet itioner was in the Wild Life Wing of the Department; whereas the ACR, pertaining to the period from 30.09.2004 to 31.03.2005, was reviewed by CCF and accepted b y PCCF, because during the period, in question, the petitioner had been working in the Research and Education Wing of the Department. 47. Controverting the above submissions, made on behalf of the private respo ndent, it has been submitted, on behalf of the petitioner, that the various wing s, such as, Wild Life, Territorial, Social Forestry, Research and Education, etc ., are only wings of the Forest Department and the immediate superior of a DCF s (E hall always be CF irrespective of any wing of the Department. A superior office r, in the context of a DCF, does not differ from wing to wing and, hence, the wh ole contention of the private respondent, raised, in this regard, has no foundat ion, erroneous and is liable to be rejected. 48. It has been further contended, on behalf of the petitioner, that the fac t, that the contention of the private respondent has no foundation, falls flat i n view of the fact that the ACR of the petitioner, for the period 01.04.2005 to 17.08.2005 (i.e., the period immediately succeeding 30.09.2004 - 31.03.2005), wa s reviewed by the PCCF and accepted by the Commissioner and Secretary in spite o f the fact that during the said period, the petitioner had been still working in Research and Education wing of the Department concerned. 49. In the light of the 1990 Rules, the petitioner’s ACR(s) were clearly not written by the appropriate authorities acting as Reporting authority, Reviewing authority and Accepting authority. When the petitioner’s ACR(s) have been writ ten by the authorities other than competent authorities, the assessment of the m erit of the petitioner, the entries and the gradings, which had been given by th e authorities not competent to act as the Reporting, Reviewing and Accepting aut horities, were bad in law and ought not to have been considered, while consideri ng the petitioner’s case for promotion. These aspects of the case appear to hav e escaped not only the notice of the Review Selection Committee, but also of the learned Tribunal. On the basis of the ACR(s) written by the authorities, who w ere not competent to writ the petitioner’s ACR(s), question of consideration of a valid selection, for the purpose of promotion, from SFS to IFS would not arise . 50. It is further contended, on behalf of the petitioner, that the ACR(s) of the petitioner were not communicated to him, at any point of time by the Commit tee, which was contrary to the law laid down by the Supreme Court in Dev Dutt vs . Union of India, reported in (2008) 8 SCC 725. Relying upon the case of Dev Du tt (supra), Mr. Nath, learned counsel for the petitioner, correctly submits that , in terms of the decision, rendered in Dev Dutt’s case (supra), all ACR(s) of t he employees need to be communicated to the employee concerned, within a reasona ble period of time, whether there is benchmark or not and non-communication of t he same is arbitrary and violative of Article 14 of the Constitution of India. The relevant paragraphs of the decision of the Supreme Court, in Dev Dutt’s case (supra), read as under: (cid:28)12. It has been held in Maneka Gandhi v. Union of India that arbitrariness viol ates Article 14 of the Constitution. In our opinion, the non-communication of an entry in the ACR of a public servant is arbitrary because it deprives the emplo yee concerned from making a representation against it and praying for its upgrad ation. In our opinion, every entry in the annual confidential report of every em ployee under the State, whether he is in civil, judicial, police or other servic e (except the military) must be communicated to him, so as to enable him to make a representation against it, because non-communication deprives the employee of the opportunity of making a representation against it which may affect his chan ces of being promoted (or get some other benefits). Moreover, the object of writ ing the confidential report and making entries in them is to give an opportunity to a public servant to improve his performance, vide State of U.P. v. Yamuna Sh anker Misra. Hence such non-communication is, in our opinion, arbitrary and henc e violative of Article 14 of the Constitution. 13. In our opinion, every entry (and not merely a poor or adverse entry) relatin g to an employee under the State or an instrumentality of the State, whether in civil, judicial, police or other service (except the military) must be communica ted to him, within a reasonable period, and it makes no difference whether there is a benchmark or not. Even if there is no benchmark, non-communication of an e ntry may adversely affect the employee’s chances of promotion (or getting some o ther benefit), because when comparative merit is being considered for promotion (or some other benefit) a person having a (cid:28)good (cid:29) or (cid:28)average (cid:29) or (cid:28)fair (cid:29) entry ce rtainly has less chances of being selected than a person having a (cid:28)very good (cid:29) or (cid:28)outstanding (cid:29) entry. 17. In our opinion, every entry in the ACR of a public servant must be communica ted 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 adve rsely affect the employee in two ways: (1) had the entry been communicated to hi m he would know about the assessment of his work and conduct by his superiors, w hich would enable him to improve his work in future; (2) he would have an opport unity of making a representation against the entry if he feels it is unjustified , and pray for its upgradation. Hence, non-communication of an entry is arbitrar y, and it has been held by the Constitution Bench decision of this Court in Mane ka Gandhi v. Union of India that arbitrariness violates Article 14 of the Consti tution. 18. Thus, it is not only when there is a benchmark but in all cases that an entr y (whether it is poor, fair, average, good or very good) must be communicated to a public servant, otherwise there is violation of the principle of fairness, wh ich is the soul of natural justice. Even an outstanding entry should be communic ated since that would boost the morale of the employee and make him work harder. 36. In the present case, we are developing the principles of natural justice by holding that fairness and transparency in public administration requires that al l entries (whether poor, fair, average, good or very good) in the annual confide ntial report of a public servant, whether in civil, judicial, police or any othe r State service (except the military), must be communicated to him within a reas onable 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. prohibitin g it, because the principle of non-arbitrariness in State action as envisaged by Article 14 of the Constitution in our opinion requires such communication. Arti cle 14 will override all rules or government orders. 37. We further hold that when the entry is communicated to him the public servan t should have a right to make a representation against the entry to the authorit y concerned, and the authority concerned must decide the representation in a fai r manner and within a reasonable period. We also hold that the representation mu st 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 ade quate consideration as it would be an appeal from Caesar to Caesar. All this wou ld 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 possib le. 41. In our opinion, non-communication of entries in the annual confidential repo rt of a public servant, whether he is in civil, judicial, police or any other se rvice (other than the military), certainly has civil consequences because it may affect his chances for promotion or get other benefits (as already discussed ab ove). Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution. (Emphasis is added) A bare reading of the observations, made by the Supreme Court in the abo 51. ve quoted paragraphs, in Dev Dutt’s case (supra), makes it clear that the ACR(s) , which have not been communicated to a person concerned, can not be taken into consideration by any Selection Committee, while examining his/her case for promo tion. However, the Supreme Court has laid down, in Dev Dutt’s case (supra), tha t in the event of non-communication of the ACR(s) to the employee concerned for any reason, such ACR(s) are to be communicated to the employee concerned at the stage of consideration of his/her case for promotion enabling the employee conce rned to make representation against the entry, which needs to be fairly consider ed following which his/her case needs to be reconsidered by the Review Selection Committee. The ratio, laid down by the Supreme Court, in Dev Dutt’s case (supr a), squarely applies to the case at hand inasmuch as the adverse entries, in the ACR(s) of the petitioner, were not communicated to the petitioner before consid eration of his case, for promotion, by the Review Selection Committee. 52. From the decision, in Dev Dutt’s case (supra), it becomes abundantly cle ar that making of any effective representation by an employee requires communica tion of the entries, made in his/her ACR(s), which would include not only the gr adings, assigned to the employee, but also the remarks made on various component s of performance of the employee concerned and consideration of the grading, ass igned to him, must precede submission of any representation, if made, by the emp loyee concerned so as to enable the employee concerned make effective representa tion. Though the learned Tribunal has proceeded on the premises that the petit 53. ioner had been communicated the entries of his ACR(s), the learned Tribunal, we find, has failed to notice that the entries, in some of the ACR(s), had been obt ained by the petitioner on the basis of the application, made by the petitioner under the Right to Information Act, 2005, and the same had not been communicated to the petitioner by the authorities concerned. The petitioner’s case, therefo re, suffers from, in fact, infraction of the law laid down, and the directions g iven, in Dev Dutt’s case (supra). 54. Clearly, therefore, when the petitioner made his representation, on 19. 07.2010, seeking review of his ACR(s), he had no idea as to what had been made i n his ACR(s) and this fact is clearly discernible if one cares to read the petit ioner’s representation. The relevant portion of the petitioner’s representation , dated 19.07.2010, read as follows: (cid:28)To, The Commissioner and Secretary to the Govt. of Assam, Environment and Forest Department, Dispur, Guwahati-6. Sub , 2002-2003, 2003-2004 and 2005-2006. Thorough Review of my ACR’s for the Financial years 2000-2001, 2001-2002 My earlier letter No. AKD/1/Confidential/7 dtd. 15/07/2010. Ref. Respected Sir, In continuation to my earlier letter No. referred above with reference to the ab ove subject I have honour to request you kindly to review my ACR’s for the perio d (2000-2001, 2001-2002, 2002-2003, 2003-2004 and 2005-2006) as I suspect that d uring the years the ACR’s written by respective Recording/Reviewing officers sen t to UPSC and MOEF was initiated in such a way that I should not be inducted int o Indian Forest Service as the grades given was more or less as an adverse ACR. Because these years were crucial for the select list prepared by UPSC for the ye ars 2005, 2006, 2007 and got myself deprived in every selection. As referred above, since I did not have any access to the confidential Rolls pre pared by the authorities I had presumed that everything recorded was with higher grades the good assessment, as I have neither been informed verbally or nor int imated in writing regarding any poor performance in any form for the years state d above also substantial evidence if there was any to improve my skills for gett ing better grades which was a systematic way of spoiling my career. But now I ha ve realized that the ACRs prepared during the years referred above were written in casual and superficial and without proper weightage in upgraded form which le d to debar me from selection to the Indian Forest Service. Therefore, I request you humbly to get my ACRs properly Reviewed and Rectified s o that I may be considered to be included to the IFS selection and get natural j ustice from your end as I have still faith and confidence in your abilities so t hat I may continue with a better zeal in the remaining part of my service career . Yours faithfully, s/d- (A. K. Das), D.F.O, Govt. T.T.S. Plant Division Makum, Tinsukia (cid:29) ) (Emphasis is added 55. As the communication of the entries in the ACR(s) is, in the light of th e decision, in Dev Dutt’s case (supra), sine qua non in order to enable the empl oyee concerned make effective representation, it is clear that the petitioner di d not have any idea, on the date of making of the representation, i.e., 19.07.20 10, about the fact that the entries, made in his ACR(s), including the gradings awarded to him, were not adverse in nature inasmuch as any grading, assigned to an officer, in the light of Regulation 5(3AA), would be treated, in the light of the decision, in Dev Dutt’s case (supra), as an adverse entry. In fact, suspect ing that his ACR(s) had not been properly recorded, the petitioner had asked for the review thereof. As the entries had not been communicated to the petitioner before the petitioner had made the representation, the learned Tribunal ought t o have held that the petitioner was denied the right to make effective represent ation against the various entries, made in his ACR(s), during the past 5 years, in question, and the petitioner was, therefore, seriously prejudiced. 56. We consider it incumbent upon us to point out, with regard to the above , that the personal hearing, which had been afforded to the petitioner on his re presentation, dated 19.07.2010, aforementioned, did not cure the incurable defec t of non-communication of the entries in the ACR(s) to the petitioner in terms o f the decision in Dev Dutt’s case (supra). It would be idle for the authority c oncerned to hear an employee if he is not communicated the entries made in his A CR(s). 57. In support of his submission that the decision, in Dev Dutt’s case (supr a), covers the case of the petitioner, Mr. N. Nath, learned counsel for the peti tioner, contends that a judicial pronouncement, on an issue of law, is always re trospective in operation unless the decision itself makes the operation of the l aw, so pronounced, prospective. In fact, prospective laying down of a law is a device innovated by the Supreme Court to avoid