The Hans India: New Delhi: Tuesday,
December 06, 2016.
Literature
suggests that the appraisal systems or the ACR in civil services has been found
to be ineffective and does not contribute to employees’ learning and
development as the ACR system has communication gaps with personal biasness and
lack of employees’ participation (Stafyarakis M, Eldridge D. HRD and
performance management. MSc in Human Resource Development Reading 5. IDPM
University of Manchester; 2002 quoted in https://www.ncbi.nlm.nih.gov/
pmc/articles/PMC4890281/).
The Supreme
Court in Vijay Kumar vs. State of Maharashtra & Ors. 1988 (Supp) SCC 674
held that an un-communicated adverse report should not form the foundation to
deny the benefits to a government servant when similar benefits are extended to
his juniors. The Supreme Court in another case State of Gujarat & Anr. vs.
Suryakant Chunilal Shah 1999 (1) SCC 529 stated:
"Purpose
of adverse entries is primarily to forewarn the government servant to mend his
ways and to improve his performance.
That is why,
it is required to communicate the adverse entries so that the government
servant to whom the adverse entry is given, may have either opportunity to
explain his conduct so as to show that the adverse entry was wholly uncalled
for, or to silently brood over the matter and on being convinced that his
previous conduct justified such an entry, to improve his performance".
Supreme Court
in Dev Dutt v Union of India and others (2008)8 SCC 725
(https://indiankanoon.org /doc/801705/) held: “In our opinion every entry must
be communicated to the employee concerned, so that he may have an opportunity
of making a representation against it if he is aggrieved”.
The
two-judge bench speaking through Justice Markandeya Katju, held as follows:
It is well
settled that no rule or government instruction can violate Article 14 (equality
before law) or any other provision of the Constitution, as the Constitution is
the highest law of the land.
The … Office
Memorandum, if it is interpreted to mean that only adverse entries are to be
communicated to the concerned employee and not other entries, would in our
opinion become arbitrary and hence illegal being violative of Article 14.
All similar
Rules/Government Orders/Office Memoranda, in respect of all services under the
State, whether civil, judicial, police, or other service (except the military),
will hence also be illegal and are therefore liable to be ignored.
The Supreme
Court explained how the ACRs and non-communication of same to the affected
party will reflect arbitrariness, as follows:
It has been
held in Maneka Gandhi vs. Union of India & Anr. AIR 1978 SC 597 that
arbitrariness violates Article 14 of the Constitution.
In our
opinion, the non-communication of an entry in the A.C.R. of a public servant is
arbitrary because it deprives the concerned employee from making a
representation against it and praying for its up-gradation.
In our
opinion, every entry in the Annual Confidential Report of every employee under
the State, whether he is in civil, judicial, police or other service (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
chances of being promoted (or get some other benefits).
Moreover, the
object of writing the confidential report and making entries in them is to give
an opportunity to a public servant to improve his performance, vide State of UP
vs. Yamuna Shankar Misra 1997 (4) SCC. Hence such non-communication is, in our
opinion, arbitrary and hence violative of Article 14 of the Constitution.
The Apex
Court established a norm that every remark, good or bad, in annual confidential
report should be communicated to the concerned employee.
It
explained:14. In our opinion, every entry (and not merely a poor or adverse
entry) relating 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 communicated to him, within a reasonable period, and it makes
no difference whether there is a bench mark or not.
Even if there
is no bench mark, non-communication of an entry may adversely affect the
employee's chances of promotion (or getting some other benefit), because when
comparative merit is being considered for promotion (or some other benefit) a
person having a `good' or `average' or `fair' entry certainly has less chances
of being selected than a person having a `very good' or `outstanding' entry.
When the
adverse remarks or less than ‘best’ appreciation will affect the career of the
employee, the natural justice demands the disclosure and review mechanism. It
is an important transparency measure which will totally transform the
relationship between superiors and the subordinate employees.
Transparency
in public administration requires all entries in ACR must be accessible to
affected employee. The Supreme Court developed the principles of natural
justice.
39. In the
present case, 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.
Natural
justice includes right to represent against adverse remarks and seek review of
the same. This is a landmark judgment by
the Supreme Court which ended the slavery for ACR. Prior to this the
Information Commissions gave different contradictory judgments regarding
disclosability of ACRs under RTI Act.
Government
Employees online portal
http://www.gconnect.in/orders-in-brief/acr-apar/annual-performance-appraisal-report-dopt-instructions.html,
gave following frequently asked questions and answers on APAR:
a)
Since when the entire remarks in the APAR is being
conveyed to the officer reported upon for representation, if any? Answer From
the report for 2008-09 onwards.
b)
On the basis of representation submitted for upgrading
the grading in the ACR/APAR under OM dated 13.4.2010, can a review DPC be
convened if the Competent Authority upgrades the grading to the benchmark
level? Answer The O.M. No. 21011/1/2010-Estt.A dated 13.4.2010 does not
envisage any review DPC and it is concerned with future DPCs only to be held
after the date of issue of the O.M.
c)
What are the time schedules for completion of various
processes in the APAR? Answer Annexure III to O.M. No. 21011/1/2005-Estt. (A)
(Pt-II) dated 23rd July, 2009 refers. This O.M. is available in this
Department’s website. Source: http://persmin.gov.in
This is the
most significant change in the functioning of pubic authorities brought by the
vibrant employees challenging the adverse ACR remarks through RTI and PILs.
However, the
change will not be applicable before 2008 and will not help the appellant to
secure any remedy for adverse remarks in ACR for years 2001 to 2004.
All of those
employees who were adversely remarked by their superiors might be at a serious
disadvantage and injustice or differential treatment.
There is no
remedy available for such employees are still in service, or retired, if their
old ACRs contain any adverse remarks and their career is affected by it.
Administrators
need to address it. (Based on decision on 1.11.2016 in Y K Mall, Lucknow v.
PIO, KVS, Delhi, CIC/CC/A/2015/002083-SA) Madabhushi Sridhar. (Copy of Oredr)