Legal Advice on Expunction of and challenge to adverse remarks in ACRs (Annual Confidential Reports)

A review of case law reveals significant insights into the principles and judicial reasoning applied to the expunction of adverse remarks in Annual Confidential Reports (ACRs) or Performance Evaluation Reports (PERs) for judicial officers and other civil servants. These principles can be summarized as follows:

1. Subjective vs. Objective Assessment:
   • The evaluation of a subordinate’s performance by a Reporting Officer or Countersigning Officer is inherently subjective. The tribunal typically does not substitute its views unless there are allegations of bad reputation or mala fide actions against the reporting officers, or if there is a violation of the instructions governing the recording of ACRs (2017 PLC(CS)N 64).
2. Requirement of Specific Instances and Material Evidence:
   • Adverse remarks must be supported by specific instances of lapses or derelictions. The absence of concrete examples or tangible material to substantiate the adverse remarks often results in their expunction (2015 PLC(CS) 659).
3. Reputation and Consistency:
   • A consistent track record of good performance and integrity can significantly counteract sudden adverse remarks, especially if previous and subsequent reports are positive. Inconsistencies and contradictions in the reporting officer’s assessments are strong grounds for expunction (2017 PLC(CS)N 64, 2015 PLC(CS) 191).
4. Communication and Delay:
   • Adverse remarks must be communicated promptly to the affected officer. Unexplained delays in communication can lead to the expunction of such remarks. Timely communication allows the officer to improve or address the issues raised (2005 PLC(CS) 132, 2009 PLC(CS) 379).
5. Mala Fide and Bias:
   • Allegations of mala fide, bias, or ill will against the reporting officers are scrutinized closely. If the tribunal finds indications of such biases, it may order the expunction of adverse remarks. This includes instances where reporting officers are influenced by external controversies or personal grievances (2015 PLC(CS) 239, 2015 PLC(CS) 173).
6. Counseling and Warning:
   • The procedural fairness requires that officers should be counseled or warned regarding their performance before adverse remarks are recorded. Failure to provide such counseling or warning can render the adverse remarks unjustifiable (2015 PLC(CS) 239).
7. Fundamental Right to Promotion:
   • Adverse remarks that impact an officer’s promotion prospects, especially when such remarks are subsequently expunged, may entitle the officer to pro forma promotion. This is considered a fundamental right if juniors are promoted while the officer is sidelined due to the adverse remarks (2016 PLC(CS) 408).
8. Jurisdiction of Service Tribunals:
   • Service tribunals have the jurisdiction to examine and expunge adverse remarks if they find that the remarks were recorded improperly, based on extraneous considerations, or unsupported by material evidence. This jurisdiction extends to examining the subjective reasons behind the remarks (2002 SCMR 870).

In conclusion, the expunction of adverse remarks in ACRs is a complex process that involves evaluating the consistency and credibility of the reporting officers’ assessments, the timely communication of remarks, the presence of specific evidence, and ensuring procedural fairness. Allegations of bias or mala fide actions by reporting officers and the potential impact on promotion prospects are also critical factors considered by the tribunals in such cases. These principles aim to protect the integrity and fairness of the performance evaluation process for civil servants and judicial officers.

The Importance and Challenges of Annual Confidential Reports (ACRs) for Civil Servants

Annual Confidential Reports (ACRs) are essential evaluation reports for civil servants, providing detailed assessments of their character, conduct, integrity, and performance. These reports play a crucial role in determining a civil servant’s career progression, including promotions and salary raises. ACRs are prepared by immediate superior officers and countersigned by higher-ranking officers, and they are meant to be written with objectivity and impartiality.

Objectives of ACRs:

The system of writing ACRs serves two main objectives. Firstly, it aims to improve the performance of subordinates in their current roles by identifying areas for improvement. Secondly, it assesses the potential of civil servants and prepares them for positions that align with their skills and aptitude.

Challenges in ACRs:

1. Subjective Assessment: Evaluating a subordinate’s performance is a subjective assessment within the domain of the reporting officer. Courts generally avoid substituting the officer’s opinion unless there is evidence of malice, bias, or partiality.
2. Unfair Adverse Remarks: Adverse remarks in ACRs can negatively impact a civil servant’s career. However, courts have the authority to expunge biased, unreasonable, or unfounded adverse remarks to ensure a fair evaluation.
3. Timely Completion: Timely completion of ACRs is crucial for conducting departmental promotion committees and considering employees’ cases for advancement. Delays in writing ACRs can cause undue hardships to civil servants awaiting promotions.
4. Communication of Adverse Remarks: Adverse remarks must be communicated to the concerned civil servant promptly, usually within one month of countersigning. Failure to do so may render the report invalid.
5. Counseling Requirement: There is no mandatory requirement for counseling before recording adverse remarks, according to recent Supreme Court pronouncements.

ACRs as Part of Career Assessment:

ACRs are considered a fundamental part of the terms and conditions of service for civil servants. They are used to evaluate an employee’s performance and determine their suitability for higher positions. However, ACRs alone should not be the sole basis for assessing a civil servant’s fitness for promotion; other factors must also be considered.

Legal Remedies for Unfair ACRs:

Civil servants have the right to challenge adverse remarks in ACRs through representations to higher authorities or through appeals and review petitions under relevant laws. Service Tribunals can examine ACRs and redress grievances if adverse remarks are found to be unjust or based on subjective reasons.x

Challenging Adverse Remarks in ACRs: Understanding Legal Remedies for Civil Servants

Annual Confidential Reports (ACRs) play a crucial role in the career progression of civil servants. These reports are part of the terms and conditions of their service and can significantly impact promotions and salary raises. However, adverse remarks in ACRs can be detrimental to a civil servant’s career, leading to the need for legal remedies to challenge such remarks.

1. Case (1) – PLJ 1996 Tr. C. (Services) 691:

In this case, the appellant challenged adverse remarks in his ACR. The Service Tribunal observed that there was nothing against the appellant, and the remarks could not be treated as adverse. The Countersigning Officer had not rated the appellant’s performance as average, yet found him unfit for promotion without providing any justification or counseling. The Tribunal held that the Countersigning Officer’s action was arbitrary and unjustified. Consequently, the Tribunal expunged the adverse remarks, assessed the appellant’s overall performance as “Good,” and considered him fit for promotion on his own turn.

2. Case (2) – PLJ 1997 Tr. C. (Services) 707:

This case highlights the difference between representation, appeal, and review in challenging adverse remarks in ACRs. A civil servant aggrieved by adverse remarks has the right to file a representation, which must be decided by the next higher authority. The distinction between representation, appeal, and review under the Service Tribunal Act, 1973, and the Civil Servants Act, 1973, must be understood. In certain cases, a review petition may be filed where an appeal is not maintainable, but representation is to be made to the next higher authority.

3. Case (1981 Supreme Court Monthly Review 840):

The Supreme Court, in this case, emphasized that ACRs are an integral part of the terms and conditions of service. The case involved a civil servant who challenged adverse remarks recorded by the Superintendent of Police in the ACR. The court held that ACR entries are final orders subject only to expunction by a higher authority. These reports form the basis for evaluating an employee’s performance and can even be used for making decisions regarding their retirement.

Civil servants facing adverse remarks in their ACRs have the right to seek legal remedies. Challenging such remarks through proper channels, such as representations, appeals, or review petitions, can help rectify any unfair or unjust assessments. It is essential for civil servants to understand their rights and the legal options available to protect their careers and secure their due promotions and salary raises.

At Josh and Mak International, we have successfully assisted numerous clients in challenging unfair ACRs through judicial remedies. If you are facing a similar legal matter and require legal advice, feel free to reach out to us at aemen@joshandmak.com for a prompt response. Remember, taking legal action against unjust ACRs can be instrumental in safeguarding your career and securing your rightful position within the civil service.

ACRs are crucial documents that impact the careers of civil servants. They should be written with objectivity, fairness, and a focus on improving performance. Unfair adverse remarks can be challenged through legal remedies, ensuring that civil servants are assessed fairly and given the opportunity to reach their true potential in their careers.

Best Practices for Departments When Making ACRs:

1. Clear Guidelines: Departments should provide clear guidelines to reporting officers on the specific qualities and criteria to be evaluated in the ACRs. These guidelines should be tailored to the nature of the officer’s role or specialized service, and any additional qualities deserving special mention should be included.
2. Initiation and Countersigning: The ACR should be initiated by the next higher officer and countersigned by an officer higher than the reporting officer, both of whom are familiar with the officer’s work. This ensures an unbiased and comprehensive assessment.
3. Timely Communication: Adverse remarks, if any, should be communicated to the officer concerned at the earliest opportunity and within one month from the date of countersigning. Failure to do so should be viewed seriously and addressed promptly.
4. No Personal Remarks: Officers making representations against adverse remarks should refrain from making personal remarks or questioning the integrity of the reporting officers. Such behavior should be considered misconduct and may lead to the rejection of the representation.
5. Communicate Accepted Opinion: When the ACR is based on individual opinions of the reporting and countersigning officers, only the opinion accepted by the countersigning officer should be communicated to the officer being evaluated.
6. Avoid Suspended Judgement: Remarks indicating that the reporting/countersigning officer suspends judgment should not be communicated, as they do not provide a clear evaluation of the officer’s performance.
7. Communication of Steps Taken: If the officer has taken steps to remedy defects pointed out in a previous year’s ACR, these efforts should also be communicated in the report.
8. Communication by Senior Officer: Adverse remarks should be communicated by the senior officer in charge of establishment matters to ensure transparency and accountability.
9. Consideration after Communication: An ACR containing adverse remarks should not be considered until the officer has been provided with a written communication of the remarks and given an opportunity to present their representation. The decision on the representation, if any, should be made before considering the ACR for any further action.

By following these best practices, departments can ensure that the ACR process is fair, transparent, and contributes to the improvement and development of civil servants’ performance and career growth.

Best Practices for Officers Responsible for Custody of Character Rolls:

1. Completion of Form: Ensure that the routine part of the evaluation form is completed and send it to the reporting officer responsible for evaluating the officer.
2. Submission to Countersigning Officer: Once the reporting officer completes the form, submit it along with the relevant character roll to the countersigning officer for their assessment.
3. Check for Adverse Remarks: Carefully review each evaluation report to check if there are any adverse remarks underlined in red ink. If such remarks are found, immediately communicate them to the officer concerned and direct them to submit their representation, if any, within a fortnight.
4. Handling Representations: Fill column 4 of the character roll folder and monitor the receipt of representations. Obtain a decision on the representation, if any, and communicate it to the officer within one month. Keep a copy of the decision in the dossier.
5. Duplicate Copies for BPS-16 Officers: For officers in BPS-16, send duplicate copies of the evaluation reports to the relevant administrative Department/Ministry. If the officer belongs to the Ministry, keep both the duplicate and original copies in your own office.
6. Organizing the Dossier: Place the evaluation report in the folder (S-121-A(i)) and make necessary entries. Then, place the folder in the envelope (S-121-A(ii)) and make relevant entries in the provided columns. When sending the dossier out, make entries in the relevant columns of the envelope and retain it in your custody.
7. Monitoring Adverse Remarks: If an officer receives adverse remarks from the same reporting officer for two successive years, consider placing the officer under another reporting officer to ensure fairness and objectivity in the evaluation process.

By following these instructions, officers responsible for the custody of character rolls can ensure a systematic and transparent process of evaluating and maintaining the records of civil servants’ performance and conduct throughout their careers.

Best practices for the Reporting Officers:

1. Objective and Circumspect Reporting: Be as objective and circumspect as possible while reporting on your subordinates. Avoid ambiguity or evasiveness in your remarks and provide clear and direct feedback. Refrain from exaggeration or gross understatement.
2. Mention Defects and Remedial Steps: State whether any defects reported have already been brought to the notice of the officer concerned and whether they have taken steps to remedy them.
3. Completing the Form in Duplicate: Fill the evaluation form in duplicate by initialing the relevant boxes in both the original and duplicate copies. If needed, you may have your views typed under the “Pen Picture” section, and don’t forget to sign at the end of the “Pen Picture.”
4. Bringing Out Qualities: If two or more qualities are bracketed together and the officer possesses only one of them, highlight this fact in the “Remarks” column. For example, if the officer is cooperative but not tactful, mention it.
5. Submission of the Form: After completing send the form to the officer responsible for the custody of the relevant character roll in your office.

Instructions for the Countersigning Officer:

1. Consideration and Remarks: Weigh the remarks of the Reporting Officer against your personal knowledge, if any, of the officer reported upon and also review their previous reports in the character roll. Provide your own remarks based on these considerations.
2. Expunging Remarks: If you find a particular remark of the Reporting Officer to be wrong and should be expunged, score it out in red ink, and initial the scoring. If you partially agree with a remark, provide your own remarks either in the “Remarks” column or under “Remarks of the Countersigning Officer”.
3. Adverse Remarks Communication: Check whether any adverse remarks were communicated to the officer in a previous year and whether they have taken steps to remedy the reported defects. Comment on this aspect unless the Reporting Officer has already done so.
4. Underlining Adverse Remarks: Underline in red ink any remarks that, in your opinion, are adverse and should be communicated to the officer concerned.
5. Returning the Form: After countersigning the form, return it to the officer responsible for the custody of the character roll.

Following these instructions will ensure an unbiased and comprehensive evaluation of the officer’s performance and conduct, leading to a fair and accurate Annual Confidential Report.

Specimen Court Document : Draft/Format/Specimen: “Representation for Expunction of Adverse Remarks in ACR of a Judicial Officer

[Your Name] [Your Designation/Position] [Your Address] [City, Country] [Date]

[Name of the Appropriate Authority] [Designation/Position] [Name of the Department/Institution] [Department Address] [City, Country]

Subject: REPRESENTATION FOR EXPUNCTION OF ADVERSE REMARKS IN A.C.R. DATED _____ FOR THE PERIOD FROM _____ TO ______ COMMUNICATED THROUGH LETTER DATED ____ BEARING NO.________.

Respected [Appropriate Authority’s Name],

1. I, [Your Name], serving as a [Your Designation/Position] in [Your Department/Institution], humbly present this representation against the adverse Annual Confidential Report (ACR) dated _____ for the period from _____ to ______, which was conveyed to me through a letter dated ____ with reference number ______.
2. Allow me to provide some brief background information. After successfully qualifying the Examination for selection of ____ Judges, I was appointed as a ____ Judge on ____ and subsequently completed my Pre-Service Departmental Training at _____ Judicial Academy during the period from ____ to ____.
3. During my tenure, I served at various stations and was posted at ____ in (Month)(Year), where I worked under Mr. ________ (Tenure) and Mr._____ (Tenure).
4. The adverse ACR, which has become a matter of concern, was recorded on ____ by Mr. ____, Worthy (designation of judge), my Learned Reporting Officer, during the period when I was posted at ____.
5. I wish to draw your attention to the following adverse remarks made by the Reporting Officer in Part II of the ACR concerning my personal qualities: PART II PERSONAL QUALITIES
6. Intelligence Below Average
7. Appearance & Bearing Below Average [Please find copies of the communication letter dated ____ and the A.C.R attached herewith as Annex-A and B, respectively.]
8. With utmost respect, I believe that the adverse remarks mentioned above do not accurately reflect an objective assessment of my intelligence, appearance, and bearing.
9. I humbly request the expunction of these adverse remarks based on the following grounds:

G R O U N D S

a. The adverse remarks are sketchy, vague, and essentially subjective, lacking any concrete basis. As the petitioner, I was not given an opportunity to explain or clarify any circumstances that may have influenced the Reporting Officer’s judgment.

b. No counseling ever took place between myself and the Learned Reporting Officer, as evident from Clause B of Part V of the ACR, where it is mentioned as NIL. Adverse remarks lacking objective material and not accompanied by counseling are unjust and should not impede my career growth.

c. A perusal of different sections of the ACR reveals contradictions in the adverse remarks, indicating a careless approach by the Learned Reporting Officer.

d. The Learned Reporting Officer assessed my intelligence as below average, yet in PART V, Clauses A & C of the ACR, the same officer described me as a young, devoted officer with a zeal to learn.

e. The adverse remarks regarding my appearance and bearing contrast with the statements in Clause D of Part V, where the Learned Reporting Officer found my conduct and work satisfactory during surprise visits. This discrepancy raises questions about the accuracy of the adverse remarks.

f. The adverse remarks have not been endorsed by the Honourable Countersigning Officer, rendering them invalid.

g. I maintain an unblemished service record, and there is no other ACR with adverse entries apart from the one in question.

h. The Learned Reporting Officer disregarded the guidelines of impartial, forthright, and unambiguous assessments while recording my A.C.R.

i. The adverse report casts a stigma on my service career and should, therefore, be expunged.

P R A Y E R

In light of the circumstances presented, I humbly pray for the expunction of the adverse remarks for the mentioned period. I believe that a fair evaluation of my performance will pave the way for my continued professional growth and contribution to the department.

I sincerely request you to kindly consider my representation and ensure a just and unbiased assessment of my A.C.R. I remain committed to serving with dedication and maintaining the highest standards of professionalism.

Thank you for your attention to this matter.

Yours faithfully,

[Your Name] [Your Designation/Position] [Contact Number] [Email Address]

[Enclosures: Annex-A, Annex-B (copies of the communication letter and the A.C.R)]