Disclosure of all contents in ACRs mandatory, says apex court

Disclosure of all contents in ACRs mandatory, says apex court In a major boost to Government staff, the Supreme Court has ruled that it was mandatory for the authorities to disclose all contents of the annual confidential report (ACR) to the employee concerned. A bench of Justices H K Sema and Markandeya Katju rejected the Centre's argument that it was under an obligation only to disclose the "adverse remarks" against an employee. "We do not agree. 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 apex court observed in a judgement while upholding the appeal filed by Dev Dutt, who has since retired. Significantly, the apex court said that it was developing a "new principles of natural justice" by passing the direction. "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 services (except in military), must be communicated to him within a reasonable period," the bench said. The apex court said that when an entry is communicated to a public servant, he/she should have a right to make a representation and the authority concerned 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," the bench observed. Such an action would be conducive to fairness and transparency in public administration and would result in fairness to public servants, the apex court said. "The State must be a model employer and must act fairly towards its employees. Only then would good governance be possible," it observed. The apex court asserted that non disclosure of the ACR contents to a public servant amounted to arbitrariness and violative of Article 14 (right to equality before law) as it deprives the employee concerned promotional opportunities. Dev Dutt, the appellant who was working with the Border Roads Engineering Services, a Central Government undertaking had filed the appeal against an order of the Guwahati High Court which had ruled that the authorities were not under any obligation to reveal the contents of the ACR to the employee concerned, if it was not adverse in nature. It was the argument of Dev Dutt that the remarks of "good" made in his ACR by the superior was not disclosed to him and as a result of which he could not make a representation to the higher authorities for upgrading the grading to "very good". According to him, as the entry "good" could not be upgraded to "very good", he was denied promotion to the post of Superintending Engineer from the post of Executive Engineer. Interpreting the service rules framed by the Ministry of Personnel/Public Grievance and Pension, the apex court said the claim of the Government that only an adverse entry is to be communicated to the employee was unconstitutional. "If it is interpreted to mean that only adverse entries are to be communicated to the concerned employee and not other entires, it would in our opinion, become arbitrary and hence illegal being violative of Article 14," the bench observed, while setting aside the High Court's ruling. The bench clarified that its directions for disclosure of all contents of the ACRs would apply to employees of all statutory authorities, public sector corporations and other instrumentalities of the state, except military personnel. In the present case as Dev Dutt had retired, the apex court said his case for notional promotion should be considered by the departmental promotion committee (DPC) and if found eligible for promotion, the appellant should be given all pensionary benefits and arrears with eight percent interest on par with other retiring superintending engineers.

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