This post discusses the Indian Supreme Court's approach towards non-communication of downgraded ACRs and APARs. We show that case law is inconsistent on the question of the relief that can be granted to an employee whose downgraded ACR/APAR was, despite not having been communicated to her, taken into consideration in deciding her eligibility for promotion or financial upgradation.
Significance of ACRs and APARs
The Annual Confidential Report (ACR), now called the Annual Performance Appraisal Report (APAR), is a year-wise report evaluating an employee's performance in a government office/ organization. The APAR is first filled up by the employee who presents a self-appraisal of the work done by her in the past year. It is then filled up by a superior officer known as the Reporting Officer who either agrees or disagrees with the employee's self-assessment. The Reporting Officer gives scores/marks to the employee against various parameters, based on which the employee's cumulative score is computed (e.g., 4, 5, 6 etc.). These scores/marks are then submitted to a yet higher authority for confirmation, known as the Reviewing Officer, who may either accept or modify the score given by the Reporting Officer. Based on the score eventually confirmed, the employee is conferred a rating of 'Good', 'Very Good' or 'Outstanding'.
These scores determine the employee's eligibility for promotion and other financial benefits. For instance, to be eligible for the grant of promotion, the employee must secure a rating of at least 'Good' or 'Very Good' (depending on the pay level of the promotional post) for five consecutive years before the T-2nd year. On the other hand, the MACP Scheme prescribes a benchmark rating of 'Very Good' regardless of the post held by the employee (the position was different prior to 25.07.2016). Thus, a single spoilt report during the reckoning period can disentitle an employee from the benefit of promotion or financial upgradation. It is therefore obvious why APARs are immensely significant for all government employees.
What is 'downgrading' and when is it permissible?
Often, despite having consistently secured an 'Outstanding' rating for several years, an employee finds that her latest APAR reflects a numerical grading between 4 and 6 which translates to a rating of 'Good'. This phenomenon is termed as 'downgrading', implying that the rating awarded to the employee is lower than the rating she has previously consistently obtained. Downgrading may or may not be accompanied by adverse remarks written by the Reporting Officer.
Downgrading is not always illegal. It is possible, of course, for an employee to perform abysmally in a given year, thus warranting a downgrading. But both the Supreme Court and the Government of India have prescribed norms based on which the permissibility of downgrading can be assessed in a given case. For instance, downgrading must not be the result of mala fides. Similarly, downgrading must not come as a surprise to the employee—the law requires that the employee be given a warning and a chance to improve her performance, only failing which should the APAR be tinkered with. Finally, reasons must be given to justify the downgrading, particularly when the impugned APAR records adverse remarks which are completely opposite to the appreciative remarks recorded in the earlier APARs. E.g., in G.R. Meghwal (2022), the downgraded ACR had been communicated to the employee and the employee had made a representation against it. However, the representation was rejected without giving any valid reasons, after which the DPC met and deemed the employee ineligible for the grant of Non-Functional Upgradation (NFU). Further, the adverse remarks in the ACR were completely opposite to the appreciative remarks recorded in the previous year by the same Reporting Officer and confirmed by the same Reviewing Officer. In this backdrop, the Court upheld the direction passed by the Central Administrative Tribunal that the employee's case for grant of NFU must be considered by ignoring the APAR.
The requirement of communication
As aforesaid, the employee is required to maintain the benchmark grading for five consecutive years during the reckoning period, i.e., up to 2 years prior to the vacancy year for which the promotions are being undertaken. If any of the APARs during the reckoning period fail to meet the benchmark, the employee must be given an opportunity to make a representation against the downgrading so that the same can be reconsidered by the department. To enable this, DoPT OMs require that any downgraded APAR must be communicated to the employee within 15 days so that she can make a representation within 15 days thereafter before the APAR is considered while deciding her eligibility for the grant of promotion or financial upgradation.
Over and above DoPT OMs, communication is a requirement directly flowing from Article 14 of the Indian Constitution, which guarantees fairness and non-arbitrariness in State action. The Supreme Court has repeatedly invoked Article 14 to hold that the employee must be given an opportunity to make a representation against a downgraded APAR before the same is considered for the purposes of promotional benefits or financial upgradation. In Dev Dutt (2008), the Supreme Court held as under:
In our opinion, 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 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 making 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 (supra) that arbitrariness violates Article 14 of the Constitution. Thus it is not only when there is a bench mark but in all cases that an entry (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, 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.
Though the correctness of Dev Dutt was initially doubted, it was eventually upheld by a larger bench in Sukhdev Singh (2013) as laying down the correct law.
But what relief?
This is where the difficulty lies. Two distinct lines of judgments are discernible in the Supreme Court's jurisprudence.
In the first category of cases, the Supreme Court has set aside the DPC's findings and held that a fresh decision ought to be taken on the employee's entitlement to promotion by ignoring the uncommunicated APAR. To complete the set of five consecutive APARs required to be considered under law, the Review DPC must consider an older APAR instead of the uncommunicated APAR. The judgments that broadly reflect this approach are Abhijit Ghosh Dastidar (2008) and Prabhu Dayal Khandelwal (2015). It is submitted that this is the correct approach, for it attaches a concrete consequence to the non-compliance of Article 14. It sends a clear message to the government that an uncommunicated APAR will not have the ability to hamper the employee's chances for promotion or financial upgradation, and that violating a fundamental right is not a remediable mistake.
The second category of cases runs in the opposite direction. In Anil Kumar (2019) the Court was concerned with the denial of financial upgradation under the MACP Scheme to the employee based on an uncommunicated ACR. It was an admitted fact that the ACR had not been communicated to the employee and that he had no opportunity to make a representation against it before his case was considered for MACP. Yet, while the Court held that the reliance on an uncommunicated APAR violated Article 14, it held as under:
"The grant of MACP benefit is not a matter of right and it is after the Screening Committee finds that the officer meets the benchmark that an upgradation can be granted. Hence, we are of the view that the appellant should be granted an opportunity, within a period of four weeks from today to submit his representation in respect of the ACRs for the years concerned where he did not fulfil the benchmark for financial upgradation. Upon the submission of his representation, the respondents shall consider it and communicate the outcome to the appellant within a period of two months thereafter. Based on that decision, the case of the appellant for financial upgradation shall be considered afresh. In the event his ACRs for the relevant period are upgraded, the case for financial upgradation shall be determined within a period of three months thereafter."
This implies that the only relief that an employee in a similar position can obtain is a direction from the Court that the APAR be communicated now and a fresh decision be taken based on the employee's representation; not that the uncommunicated APAR be ignored for the purposes of taking a fresh decision. Thus, instead of attaching a clear consequence to the violation of a fundamental right, the Court relegated the employee back to the government's mercy. One can imagine that the government could very well reject the employee's representation, with or without a speaking order, again placing upon him the burden to approach the court. A similar approach was followed by the Supreme Court in Saroj Kumar (2015) in the context of denial of promotions.
Readers may also note that both Anil Kumar and Saroj Kumar were delivered by two-judge benches of the Supreme Court. The contrary decision in Abhijit Ghosh Dastidar was rendered by a three-judge bench while Prabhu Dayal Khandelwal was rendered by a two-judge bench. Thus, in case of conflict, the approach adopted by the larger bench in Abhijit Ghosh Dastidar should prevail. The only difference in the facts of the two categories of cases is that in Anil Kumar and Saroj Kumar, the adverse ACRs were communicated to the employee before the litigation concluded. However, it is submitted that this distinction is not sufficient to deviate from the law laid down by the earlier/larger benches. Further, this approach would allow the government to harass an employee by first denying her the benefit of promotion/financial upgradation, thus forcing her to litigate, and then simply supplying a copy of the APAR during the pendency of the litigation, thus forcing her to submit a representation and eventually start a fresh litigation against the downgrading and/or adverse remarks in the APAR.
Conclusion
The Supreme Court's case law is inconsistent with respect to the consequences attached to the denial of promotion or financial upgradation based on an uncommunicated, adverse APAR. While the three-judge bench decision in Abhijit Ghosh Dastidar and the two-judge bench decision in Prabhu Dayal Khandelwal reflect a strict approach, the two-judge bench decisions in Anil Kumar and Saroj Kumar are lenient towards the government. It is submitted that the latter category of decisions are incorrect and also inconsistent with the larger-bench judgment in Abhijit Ghosh Dastidar.
This post is authored by Pravah Law's Counsel, Shrutanjaya Bhardwaj, with the help of research conducted by our Associate, Siddhi Nagwekar.
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