Uncommunicated adverse entries, unpublished instructions can’t affect employees’ service rights: HC

Srinagar, Aug 7: The High Court of J&K and Ladakh has ruled that uncommunicated adverse entries and unpublished administrative instructions cannot form the basis for adverse decisions affecting employees’ service rights.

“Courts have consistently held that uncommunicated adverse entries and unpublished administrative instructions cannot form the basis for adverse decisions affecting employees’ service rights,” a division bench comprising Justice Wasim Sadiq Nargal and Justice Rajesh Sekhri said while deciding a plea by an employee of the High Court who was aggrieved of her promotion.

Baseer -Ul- Haq Hussami, a senior assistant in the High Court of J&K and Ladakh, had petitioned the Court and sought its intervention for her promotion to the post of Head Assistant with effect from November 24, 2022. The aggrieved employee was denied the promotion on the basis of her “adverse uncommunicated Annual Confidential Reports (ACRs) of the year 2020”, according to her plea.

The authorities including J&K administration and High Court of J&K and Ladakh had justified the denial on the ground that the employee had secured only 54% (19 points) in the assessment of her ACRs for the period 2017-2021, falling short of the mandatory 65% aggregate marks prescribed under Order No. 415 dated 05.10.2020.

Hussami’s contention was that the adverse ACRs 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”.

The authorities submitted that the petitioner failed to secure the mandatory aggregate of 65% marks in her Annual Confidential Reports (ACRs)for the preceding five years, as required under Order No. 415 dated 05.10.2020.

They further contended that publication of the executive order by way of a notification was not required in the absence of any statutory mandate and that the order operates both retrospectively and prospectively for assessing promotions.

“The stand of the petitioner, requiring publication of executive orders in the Gazette is misplaced. There is no statutory mandate under the applicable service rules requiring publication of Order No. 415 in the official Gazette. The order was issued as an administrative instruction to streamline promotions and ensure merit-based advancement” they said.

After hearing the parties’ arguments, the court noted that the denial of promotion to the petitioner on the basis of uncommunicated adverse ACRs, amounted to a gross violation of the principles of natural justice.

“It is a settled position in law that any material adverse to the interest of an employee, if relied upon to deny promotion or other career advancement must be duly communicated so as to enable the employee to make an effective representation”.

The Court observed that the failure of the respondents(authorities) to “communicate such ACRs deprived the petitioner of this vital procedural safeguard and renders the entire process unsustainable in law”.

“Further, we hold that Executive Order No. 415 dated 05.10.2020, which imposes conditions materially affecting the service rights and legitimate expectations of employees, required proper publication, either in the Official Gazette or through another effective mode of communication,” the bench said.

Administrative instructions that remain un-notified, cannot be used to alter the service conditions of employees to their detriment, it added.

The Court held that the retrospective application of Executive Order No. 415, dated 05.10.2020, to govern promotions for a period predating its issuance, is wholly untenable in law. “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 Court pointed out that in the present case, the respondents have sought to apply the newly introduced criterion of securing a minimum of 65% aggregate marks in ACRs to the petitioner’s promotion assessment for the period 2017–2021. “This approach is legally impermissible, as it imposes an additional eligibility condition for a period during which the petitioner had no notice or opportunity to meet such a requirement”.

The Court said the respondents' “reliance on uncommunicated and un-notified order to retrospectively deny the petitioner her due consideration for promotion, not only contravenes the principles of fairness and non-arbitrariness under Article 14 of the Constitution but also prejudices her vested right to be assessed under the criteria that was in force during the relevant time”.

With regard to the respondents’ stand that the criteria prescribed under executive order no.415 are intended to apply to non-gazetted staff, the court said they were duty bound to notify all employees, including those to whom the rules would apply, so that they could be made aware of the applicability of the benchmark criteria.

“If the intention was to extend the applicability of the 65% benchmark, which was originally framed for gazetted officers, to non-gazetted staff as well, then the respondents ought to have either amended the relevant rules or issued a formal corrigendum clarifying the same”.

The Court observed that the retrospective application of the rule was plainly contrary to law. “ Critically, the recording of an adverse ACR for the year 2020 when the petitioner was on sanctioned medical leave due to COVID-19 pandemic, is patently arbitrary and unsupported by any material,” the court said, adding, “penalising an employee for a period of illness beyond her control, particularly during a global pandemic, violates not only established legal principles but also the broader tenets of fairness and equity in public employment”

Observing that it was persuaded that the petitioner has suffered substantial prejudice due to administrative lapses, entirely beyond her control, the bench said granting the relief sought would not only vindicate her individual rights but also affirm constitutional values of fairness, equality, and accountability in public service.

“It would serve as a necessary reminder to the executive of the importance of maintaining transparent and just administrative practices” “ Before parting, we direct the Registrar General of the High Court of J&K and Ladakh that if executive order No. 415 dated 05.10.2020 is to be applied to the non-gazetted staff of the High Court, it shall be duly communicated, notified, and published through appropriate mode to ensure that all affected employees are given proper notice of its contents and implications and issue a formal notification applying executive order No. 415 to non-gazetted employees only after obtaining approval from Hon’ble the Chief Justice of the High Court” the bench said.

Allowing the petition, the court quashed the order rejecting the petitioner’s representation without assigning any cogent reasons for such rejection. It also scrapped the entry of "below average" in the annual confidential report of the petitioner for the year 2020.

While holding the petitioner’s denial to promotion “unsustainable in law”, the bench, accordingly, directed the respondents to accord consideration to the claim of petitioner for promotion to the post of Head Assistant with retrospective effect and to grant her all consequential benefits of seniority and monetary in accordance with law without taking into consideration the adverse ACR of the year 2020.