*Says Rules must be known, not assumed
Excelsior Correspondent
JAMMU, Aug 6: A Division Bench of the High Court of Jammu & Kashmir and Ladakh comprising Justice Wasim Sadiq Nargal and Justice Rajesh Sekhri has held that un-communicated Annual Confidential Reports (ACRs) and un-notified executive orders cannot be relied upon to deny an employee promotion or service benefits.
The DB passed this judgment in a case filed by Baseer-ul-Haq Hussami, a Senior Assistant in the High Court establishment, who had been denied promotion to the post of Head Assistant despite being senior to the officials who were promoted on November 24, 2022.
The petitioner contended that the adverse ACRs recorded for 2019-2021 were never communicated to her, violating her right to make representations against them. She further contended that the guidelines applied for her assessment were originally framed for the post of Gazetted staff and could not be extended to her post without publication by way of a notification, rendering them inapplicable and unenforceable.
However, the respondents justified the denial on the ground that the petitioner secured only 54% (19 points) in the assessment of her Annual Confidential Reports (ACRs) for the period 2017-2021, falling short of the mandatory 65% aggregate marks prescribed under Order No. 415 dated 05.10.2020.
After hearing both the sides, the Division Bench observed, “adverse remarks in the petitioner’s ACRs for the years 2019, 2020 and 2021 were never communicated to her. Every entry in the ACR whether poor, average or good-must be communicated if it may affect an employee’s promotion prospects”.
Stating that non-communication of such entries is not just an administrative lapse but a direct violation of natural justice, the DB ruled that an employee cannot be denied the opportunity to contest or respond to remarks that affect his/her career, adding “ACRs recorded without disclosure or opportunity to respond render the entire promotion process void and unsustainable in law”.
The other major illegality noted by the DB was the reliance on Executive Order No. 415 dated 05.10.2020, which prescribed 65% benchmark in ACRs for promotions. Originally applicable only to gazetted staff, the order was extended to non-gazetted employees like the petitioner without any official notification, circular or public communication.
“It is a settled principle in service jurisprudence that administrative orders or executive instructions altering service conditions cannot operate retrospectively unless there is clear and express statutory sanction authorising such retrospective effect”, the DB said, adding “executive instructions altering service conditions must be properly notified or published especially if they impose new eligibility conditions”.
“There is no record of any notification or circular informing non-gazetted employees about the application of this order. Applying it without notice is procedurally illegal and contrary to the principle of legitimate expectation”, the DB added.
Citing the Supreme Court’s rulings in Harla Versus State of Rajasthan and B K Srinivasan Versus State of Karnataka, the Bench reaffirmed that unpublished executive orders cannot alter employee rights and retrospective enforcement of such orders is impermissible unless explicitly provided for.
The DB further ruled that even if the Executive Order had been valid, it could not be applied retrospectively to the petitioner’s ACRs for the period 2017-2020 as the order came into effect only in October 2020. “Retrospective application of a new benchmark without notice alters settled rights and creates administrative uncertainty. This is against settled jurisprudence”, the DB added.
The DB also quashed the below average ACR recorded for the year 2020, during which the petitioner was on sanctioned medical leave due to COVID-19 and observed, “an employee cannot be assessed for performance while on leave”.
With these observations, the DB quashed the adverse ACR for 2020 and struck down the order rejecting the petitioner’s promotion representation. Accordingly, the DB directed the respondents to consider her for promotion to Head Assistant from November 24, 2022 with all consequential benefits including seniority and monetary dues.
“The Executive Order No. 415 must not be applied to non-gazetted staff unless it is formally notified, published and approved by the Chief Justice”, read the judgment.
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