• Downgrading of ACRs by two steps in Central PSU

I am working in Central PSU. I came to know thru RTI that my ACR for the year 2010 has been down graded as Under:
Excellent by Reporting Officer. Then Excellent by Reviewing Officer. Then Fluid was applied on Excellent rating (by reviewing officer) Downgraded to Good (downgrading by 2 steps) with his initials (it could be due to fraud by someone else also) with no reasons of downgrading. the ACR rating Good was accepted by C/s / Accepting authority. 
similarly, my ACR was downgraded by Accepting authority by 1 step without any reason.
Consequently, I was rejected for promotion in 2012 DPC.
I appealed to Competent authority who rejected my appeal (because he earlier happened to be C/s / Accepting authority) stating that I have not completed certain tasks, which I had claimed to have been accomplished. 
This all happened even though the DOPT/ BPE / Supreme court guidelines in Dev Dutt case were in force regarding disclosure of Full ACRs before DPC/ I was denied opportunity to be heard.
What are options before me for redressal of my grievance. Is not following the rule made by supreme court willfully, a violation/ contmept of court on part of authorities.
Asked 2 years ago in Civil Law from Shimla, Himachal Pradesh
1) SC has held in (DEV DUTT VS. UNION OF INDIA).  we are developing the principles of natural justice
by holding that fairness and transparency in public administration requires
that all entries (whether poor, fair, average, good or very good) in the
Annual Confidential Report of a public servant, whether in civil, judicial,
police or any other State service (except the military), must be
communicated to him within a reasonable 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. prohibiting it, because the
principle of non-arbitrariness in State action as envisaged by Article 14 of
the Constitution in our opinion requires such communication. Article 14
will override all rules or government orders."

2) " 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."

3) since you were not furnished your ACR to enable you to make representation it is in violation of principles of natural justice 

4) SC in caseof  Abhijit Ghosh Dastidar Vs. Union of India & Ors.
Confirming the ratio laid down in Dev Dutt's case, the Court observed that, “
In our opinion, non-communication of entries in the ACR of a public servant
whether he is in civil, judicial, police or any other service (other than the
armed forces), has civil consequences because it may affect his chances for
promotion or get other benefits. Hence, such non-communication would be
arbitrary and as such violative of Article 14 of the Constitution”. It left
Government with no option but to honour the directions concerning
communication of grading

4) you can contact a local lawyer and move high court for necessary reliefs 
Ajay Sethi
Advocate, Mumbai
45456 Answers
2670 Consultations

5.0 on 5.0

You should file a mandamus writ under article 226 before the High court. If there is any alteration by applying fluid you have right to challenge its legality in the court. If it is proved in the court that alteration was caused with ill will they shall be prosecuted under section 420/467/468/ 120 B of IPC. 
Shivendra Pratap Singh
Advocate, Lucknow
5066 Answers
78 Consultations

4.9 on 5.0

Article 14 in The Constitution Of India 1949
14. Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
In a case decided by Central Administrative Tribunal - Delhi
Dr. Rakesh Verma vs The Secretary on 22 May, 2013

The decision was 
RELIEFS (i)	Quash and set aside the impugned orders dated 01.03.2012 (Annexure-A-1), March 2012 (Annexure-A-2) and the action of the respondents to deprive the applicant for promotion to post of HAG (Additional Director General, Health Services).

(ii)	To direct the respondents to treat the ACRs of the applicant available as Very Good in terms of the decision of Director General Health Services dated 13.11.2011;

(iii)	Direct the respondent No.3 to consider the case of the applicant for promotion to the post of HAG/Addl. Director General Health Services by a Review DPC and in case the applicant found fit, the applicant may be promoted with all benefits including arrears of salary etc. w.e.f. due date with all other consequential benefits;

(iv)	Direct the respondent No.1 to order Police action & departmental action against respondent No.6 & co conspirators for tampering with the official records pertaining to the ACRs of the applicant without any authority and further direct the respondent No.1 not to allow respondent No.6 deal with any of the service matters as defined under A.T. Act, 1985 relating to the applicant;

(v)	Direct the respondents to quash & set aside below bench mark observations made by respondent 6 Dr. Jagdish Prasad for the year 2007-08 and a certificate be issued in lieu of this.

(vi)	Relevant office records of respondents may be called and persued for knowing full truth & malafides done.

(vii)	May also pass any further order (s), direction (s) as be deemed just and proper to meet the ends of justice.

INTERIM RELIEF Respondent No.3 be directed to withhold DPC for HAG post till a decision is taken by this Honble Tribunal.

Respondent No.1 be directed not to involve Respondent 6 in any service matter pertaining to the applicant.

Respondent No.1 be direct to keep records in a safe custody & obtain report for UPSC.
T Kalaiselvan
Advocate, Vellore
35621 Answers
386 Consultations

5.0 on 5.0

how  I can get fast justice as the authorities took 8 months to reject my appeal( the top management of PSU) Should I file a fresh Appeal with Competent authority citing the Supreme court ruling/ Guidelines or forced to go to High court and claim compensation also for willful default by management.
You cn file a writ petition before high court.  For your information reproduced below  is the gist of writ decided in 

Judgment delivered on: October 01, 2014
W.P. (C) No. 5649/2013
SHRI TARSEM KUMAR ..... Petitioner
Through: Mr. S.N. Kaul, Advocate
Through: Mr. Sunil Kumar and Mr. T.P. Singh, Advocates. 

Hence such noncommunication
is, in our opinion, arbitrary and hence violative of
Article 14 of the Constitution.
We further hold that when the entry is communicated to him the public
servant should have a right to make a representation against the entry to the
concerned authority, and the concerned authority must decide the
representation in a fair manner and within a reasonable period. We also hold
that the representation must 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 adequate consideration as it would be an appeal
from Caesar to Caesar. All this would 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 possible.”
21. It is also pertinent to note that the respondents have not denied the
fact that the representation dated 02.08.2010 of the petitioner was not
decided by the authority higher than the one who was an Accepting Officer,
although that was not the case. Therefore, we have no hesitation in taking a
view that the order dated 17th February 2011, passed by the DG, CISF, who
was an Accepting Officer in the case of petitioner, cannot stand the test of
legal scrutiny it deserves to be outright rejected. The said order also records
though, that the officer had preferred a representation dated 02.08.2010 to
the DG, CISF, whereas in reality the petitioner’s representation was
addressed to the President of India. The order dated 17.02.2011 is also a
non-speaking order, and the same itself exemplifies the non application of
mind on the part of the concerned authority in not dealing with the
objections raised by the petitioner to challenge his ‘Average’ grading of
ACR in 2008-2009.
22. We, however, do not find ourselves in agreement with the contention
raised by counsel that the said adverse ACR of 2008-2009 should be treated
as non est in case of the petitioner and the directions be given to the 
respondents to hold a review DPC for considering the case of the petitioner
for his promotion to the senior rank of Senior Commandant against the
vacancies for the years 2011-2012 and 2012-2013 by treating the said ACR
of 2008-2009 as non est. On this legal position we are fortified by the
Supreme Court decision in the case of Dev Dutt v. Union Of India & Anr.,
(2008) 8 SCC 725, and the recent decision given by the three Judge Bench in
Sukhdev Singh v. Union of India and others, (2013) 9 SCC 573.
23. In the light of the above decisions and also considering the fact that
the petitioner is due for his retirement during this year only, we deem it
appropriate to direct that :-
a) The petitioner shall file his representation afresh to challenge his
‘below benchmark’ grading in the ACRs for the years 2008-2009 before the
competent authority;
b) The representation so filed by the petitioner shall be considered by an
officer higher in rank to that of an Accepting Officer and the representation
of the petitioner shall be decided by the Competent Authority within a
period of four weeks from the date of this order.
c) If his entry is upgraded, the appellant shall be considered for
promotion retrospectively by the Departmental Promotion Committee (DPC)
within two months thereafter;
d) If the appellant gets selected for promotion retrospectively, he should
be given the benefit of seniority from such date along with arrears of pay
and all other consequential benefits.
24. With aforesaid directions, the appeal is allowed. No costs.
T Kalaiselvan
Advocate, Vellore
35621 Answers
386 Consultations

5.0 on 5.0

What is supreme court ruling on applicability of DOPT guidelines in Central PSUs
(Arising out of S.L.P. (Civil) No. 25572 of 2014)
Saroj Kumar … Appellant
Union of India and others …Respondents
Prafulla C. Pant, J.
This appeal is directed against judgment and order
dated 27.2.2014, passed by the High Court of Judicature at
Allahabad in Writ – A No. 50733 of 2012 whereby the High
Court has allowed the petition and set aside the order dated
16.1.2012 passed by the Central Administrative Tribunal,
Allahabad Bench (for short “the Tribunal”) in Original
Application (OA) No. 658 of 2011. By said order the
Tribunal (CAT) had directed that the claim by the appellant
Saroj Kumar for promotion be considered ignoring earlier
Page 2 of 10
uncommunicated entries of Annual Confidential Reports
(ACRs). The controversy in the present case relates to the
downgrading ACRs of the appellant without giving him any
opportunity, which were later communicated and
representation made by the appellant was also considered
and rejected.
In our opinion, the High Court has rightly taken note
of the fact that on conclusion of second round of litigation
neither there was direction by the Tribunal nor by the High
Court to ignore the entries in question (after rejection of the
representation against it) for promotion of the appellant
from the date when his juniors were promoted. In the
 (2013) 9 SCC 566
Page 10 of 10
present round, the Tribunal has erred in directing the
authorities to consider the case of the appellant for
promotion from the date when his juniors were promoted,
ignoring the remarks, which had been communicated after
first round of litigation. We are in agreement with the High
Court that after the ACRs have been communicated and
representation has been rejected, the Tribunal should not
have treated the remarks uncommunicated. 
T Kalaiselvan
Advocate, Vellore
35621 Answers
386 Consultations

5.0 on 5.0

can psus frame different promotion rules other than Merit-cum-seniority or seniority cum merit principles laid down by DOPT
Th PSUs can make the regulations common to undertaking without disturbing the law of DOPT in this regard.
T Kalaiselvan
Advocate, Vellore
35621 Answers
386 Consultations

5.0 on 5.0

The downgrading of ACR has an adverse affect on the career prospects of the employee, and so it cannot be done in a whimsical manner without assigning a reason and also without hearing the employee. You had filed an appeal which has been dismissed. Now the remedy for you is to move the High Court against department. There is merit in your case.
Ashish Davessar
Advocate, Jaipur
22977 Answers
634 Consultations

5.0 on 5.0

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