TaxTMI 
TaxTMI 
2007 (2) TMI 221
X X X X Extracts X X X X
X X X X Extracts X X X X
....xcise on an ad hoc basis in the year 1983 and the said appointment was regularized as Deputy Collector of Customs and Central Excise, vide order dated 16-7-1985. The Government of India, Ministry of Finance issued an Office Order No. 187 of 1997 for the ad hoc promotion of respondent No. 1 and proforma respondents to officiate in the grade of Commissioner of Customs and Central Excise. 3. The Departmental Promotion Committee (for short "the DPC) was constituted for considering officers for promotion to the post of Commissioner of Customs and Central Excise in April, 1997 and February, 1998. Respondent No. 1 represented against the seniority assigned to him and he claimed that his ACR's for the year 1994-1995 had not been properly graded or considered by the DPC and the lower grading given to him by the Reviewing Officer on one ACR was not proper and DPC ought to have considered the higher grading given by the reporting Officer. 4. The Office Order No. 11 of 1999 was issued on 12-1-1999 by the Government of India, Ministry of Finance whereby promotions of these officers were made on the post of Commissioner of Customs and Central Excise. Office Memorandum No. F. No. Q-3201....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 1999 illegal to the extent it places respondents 2 to 5 above the applicant, and to give correct placement of the applicant at Sl. No. 1 of the list contained in the said order, (ii) In the alternative, to set/quash the promotions of respondents 3 to 6 insofar as they have been promoted and given seniority above the applicant, (iii) To quash and set aside the undated Office Memorandum (Annexure-A2) issued by the respondent No. 2, (iv) To grant costs of this application to the applicant herein, and (v) To pass such other order or orders as may be deemed fit and proper in the interests of justice." 6. The appellants filed their counter affidavits rebutting the claim of respondent No. 1. It was submitted that the DPC had followed duly approved norms and procedure as prescribed vide para 6.2.1 of M.M. (DOP&T) No. 22011/556-Estt.(D) dated 10-4-1989. 7. The Tribunal dismissed the said petition by following the Full Bench decision in the case of Manik Chand v. U.O.I. & Ors. 2002 (3) ATJ 268 to hold that it is not necessary to communicate the remarks/grading which are not adverse or not below the bench mark prescribed for promotion to a particular post in respect of a se....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rendered on 22-11-2002 would not come into play. We set aside and quash the order of the Tribunal and the ACRs for the year 1992-1993, 1993-1994 and 1994-1995 and remand the case back to the respondent to reconsider afresh within a period of three months the seniority of the petitioner in terms of the above observations qua the respondents." 10. Aggrieved by the said order, appellant Nos. 1 & 2 preferred the above appeal by way of special leave petition before this Court. 11. We have heard Mr. R. Mohan, learned Additional Solicitor General and Mr. T.S. Doabia, learned senior counsel appearing for the appellants and Mr. Rajiv Dutta, learned senior counsel appearing for respondent No. 1. 12. Mr. R. Mohan, learned Additional Solicitor General took us through the impugned order passed by the High Court and other relevant records and submitted that the High Court erred in its failure/omission to take into consideration the Government instructions for regulating recording of Annual Confidential Reports which provide for only communication of adverse remarks in the ACRs. Since respondent No. 1 had received no adverse remarks and has rather been graded at the level of the prescrib....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s achievements for the past 15 years. 15. Mr. Rajiv Dutta further submitted that right from the day of initial entry stage to the date of ad hoc promotion to the post of Commissioner, respondent No. 1 was shown senior to respondent Nos. 2-5. He further submitted that respondent No. l has been an upright, hardworking and honest officer and has been rated as outstanding from 1989-1990 to 1996-1997- by the reporting officers. However, subsequently respondent No. 1 came to know that for the years 1992-1993, 1993-1994 and 1994-1995, the reviewing officer had down graded his ACR by one step i.e. from 'outstanding' to 'very good'. It is significant that for the years 1995-1996 and 1996-1997 the reporting officer rated respondent No. 1 as 'outstanding' and on his ACR being forwarded to the Central Vigilance Commissioner also respondent No. 1 was rated as 'outstanding'. 16. According to Mr. Rajiv Dutta, the. reviewing officer did not give any reason for downgrading respondent No. 1 from 'outstanding' to 'very good'. Moreover, there was no material before him for downgrading the rank of respondent No. 1. The Reviewing did not indicate any....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Court held that the object of writing the confidential reports and making entries in the character rolls is to give an opportunity to a public servant to improve excellence. Article 51 A(j) of the Constitution of India enjoins upon every citizen the primary duty to constantly endeavour of prove excellence, individually and collectively, as a member of the group. Given an opportunity, the individual employee strives to improve excellence and thereby efficiency of administration would be augmented. The officer entrusted with the duty to write confidential reports, has a public responsibility and trust to write the confidential reports objectively, fairly and dispassionately while giving, as accurately as possible, the statement of facts on an overall assessment of the performance of the subordinate officer. It should be founded upon the facts or circumstances. Though sometimes, it may not be part of record, but the conduct, reputation and character acquire public knowledge or notoriety and may be within his knowledge. Before forming an opinion to be adverse, the reporting officers writing confidential reports should share the information which is not a part of the record with the of....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... in the matter of promotion inter se seniority fixed at the time of initial enty stage should not be disturbed. In the facts and circumstances of the case, learned senior counsel submitted that the impugned judgment of the High Court which is clearly based upon the law as laid down by this Court in a number of cases is unassailable and, therefore, the civil appeal has no merits. 22. We have carefully considered the rival submissions with reference to the records placed and material placed before us and the judgment of the Tribunal and that of the High Court. We heard extensive arguments from both sides. The only question that arises for consideration in the instant case is as to whether the High Court has erred in its failure/omission to take into consideration the government instructions for regulating recording of ACR which provide for only communication of adverse remarks in the ACRs. 23. In the instant case, respondent No. 1 had received no adverse remarks and had rather been graded at the level of the prescribed bench mark of 'above average', therefore, as rightly pointed out by learned Additional Solicitor General, there was neither any onus nor requirement upon....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n Revenue Service, Customs and Central Excise Service. 27. It was also argued by the learned senior counsel appearing for respondent No. 1 that the entries for the period had an element of adverse reflection and for that purpose the seniority of respondent No. 1 was downgraded and, therefore, the ACR ought to have been communicated to respondent No. 1. In our opinion, the observations of the High Court are wholly unjustified inasmuch as the post of Commissioner of Customs and Central Excise is a post required to be filled up on selection made strictly on the basis of merit. No judicial review of DPC proceedings, which are ordinarily conducted in accordance with the standing government instructions and Rules is warranted. The norms and procedure for DPC are prescribed in O.M. dated 10-4-1989. It is thus seen that the decision taken by the appellants has been as per the instructions issued on the subject that only adverse entries and remarks are to be communicated and there is no provision to communicate the downgrading of ACR to a government employee. The decision of the Central Government is in strict accordance with the prevailing rules and government instructions. In the absen....
X X X X Extracts X X X X
X X X X Extracts X X X X
....icer. Thereafter, refusing to interfere with the selection of respondent No. 4 by the DPC but setting aside the said observation of the CAT, this Court held as under : "Having regard to the confidential procedure which is followed by the Union Public Service Commission, it is not possible to hold that the decision of the DPC in grading the appellant as "very good" instead of "outstanding" was arbitrary. No ground is, therefore, made out for interference with the selection of respondent 4 by the DPC on the basis of which he has been appointed as Deputy Government Advocate. But, at the same time, it has to be held that the Tribunal was in error in going into the question whether the appellant had been rightly graded as "outstanding" in the ACRs for the years 1990-1991 and 1991-1992. The observations of the Tribunal that out of the two "outstanding" gradings given to the appellant one "outstanding" grading does not flow from various parameters given and the reports entered therein, cannot, therefore, be upheld and are accordingly set aside." 2. Union Public Service Commission v. L.P. Tiwari & Ors. 2006 (12) SCALE 278 : This case relates to grading in selection list for promotion....