J&K High Court Quashes Adverse ACR Recorded During COVID Medical Leave | Says Action Was Arbitrary And Violated Natural Justice
Safiya Malik
The High Court of Jammu & Kashmir and Ladakh Division Bench of Justice Wasim Sadiq Nargal and Justice Rajesh Sekhri has held that the denial of promotion based on uncommunicated adverse Annual Confidential Reports (ACRs) constitutes a gross violation of natural justice and Article 14 of the Constitution. The Bench quashed the adverse ACR entry for 2020 recorded against the petitioner and set aside the impugned order that had denied her promotion to the post of Head Assistant. The Court further directed the respondents to consider the petitioner for promotion retrospectively from 24.11.2022, the date her juniors were promoted, and to grant all consequential benefits, including seniority and arrears, without considering the impugned adverse entry.
The Division Bench found that Executive Order No. 415 dated 05.10.2020, which introduced a new benchmark of 65% in ACRs for promotion, was applied retrospectively without due notification, thereby violating procedural fairness. The Court observed that adverse ACRs recorded during a period of sanctioned medical leave due to COVID-19 could not be legally sustained. The writ petition was accordingly allowed with specific directions to rectify the petitioner’s service record.
The petitioner, employed as a Senior Assistant in the High Court of Jammu & Kashmir and Ladakh, challenged the decision dated 24.11.2022 which denied her promotion to the post of Head Assistant and resulted in the elevation of her juniors. The basis for the denial was her purported failure to secure the mandatory 65% marks (minimum 22 points) in the assessment of her Annual Confidential Reports (ACRs) over a five-year period from 2017 to 2021. According to the respondents, she had obtained 54% (19 points) and therefore fell short of the required threshold as per Executive Order No. 415 dated 05.10.2020.
The petitioner contested this decision, arguing that the adverse ACRs recorded for 2019, 2020, and 2021 were never communicated to her. She maintained that this non-communication deprived her of the opportunity to make a representation or seek review of the said entries, violating established principles of service jurisprudence. Furthermore, she submitted that Order No. 415, prescribing a 65% ACR benchmark, was originally intended for gazetted staff and had not been formally notified or published for non-gazetted employees like herself. Thus, she argued that the order was inapplicable to her case.
She also claimed that during the year 2020, when she received the adverse ACR rating of "below average," she had been on sanctioned medical leave for COVID-19-related illness. She submitted that no performance evaluation could reasonably be made during that period and that the adverse remarks were arbitrary, without basis, and had not been conveyed to her in compliance with law.
On the other hand, the respondents admitted that the adverse ACRs had not been formally communicated to the petitioner but maintained that her aggregate ACR score legitimately disqualified her from promotion. They contended that the petitioner had not challenged the validity of Order No. 415 in her writ petition and therefore could not seek relief on that basis. They asserted that the order applied both retrospectively and prospectively, and in any case, promotions were governed by the principle of seniority-cum-merit with ACRs being a central part of merit evaluation.
The respondents further maintained that Order No. 415 had been issued with the approval of the Hon’ble Chief Justice and the Administrative Committee of the High Court and was consistently applied to all non-gazetted staff over the years. They argued that there was no statutory requirement for the order to be published in the official Gazette or communicated separately to each employee. They urged dismissal of the writ petition and submitted that the petitioner would be considered for promotion in the future, subject to fulfillment of the applicable eligibility criteria.
The Division Bench considered the non-communication of adverse ACRs as a fundamental flaw. Referring to Dev Dutt v. Union of India (2008) 8 SCC 725, the Court recorded: "Every entry in the ACR of a public servant must be communicated to him within a reasonable period, whether it is a poor, fair, average, good or very good entry." It further stated: "Non-communication of an entry is arbitrary...and it has been held by the Constitution Bench decision of this Court in Maneka Gandhi v. Union of India that arbitrariness violates Article 14 of the Constitution."
The Bench stated that "denial of such an opportunity not only violates natural justice but also renders any decision based on uncommunicated material, legally unsustainable." The Court also cited Sukhdev Singh v. Union of India (2013) 9 SCC 566, observing: "When the entry is communicated to him the public servant 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."
On the applicability of Order No. 415, the Court noted that it was "originally intended to apply to gazetted staff only, and its subsequent extension to non-gazetted staff without any formal notification or publication, amounts to a procedural illegality." Citing Harla v. State of Rajasthan AIR 1951 SC 467, the Court remarked: "Natural justice requires that before a law can become operative it must be promulgated or published... The thought that a decision reached in the secret recesses... can nevertheless affect their lives... is abhorrent to civilised man."
It further stated: "Where a law... demands compliance, those that are governed must be notified directly and reliably of the law and all changes... Delegated or subordinate legislation... must be published or promulgated in some suitable manner." This principle was reinforced with references to B.K. Srinivasan v. State of Karnataka (1987) 1 SCC 658 and R. Ranjith Singh v. State of Tamil Nadu 2025 SCC Online SC 1009, both affirming the need for formal publication of executive orders impacting service conditions.
Regarding retrospective application, the Court cited State of Punjab v. Bhajan Kaur (2008) 12 SCC 112 and Madishetti Bala Ramul v. Land Acquisition Officer (2007) 9 SCC 650, stating: "Executive orders or administrative instructions altering service conditions cannot operate retrospectively unless the language of the order expressly provides for such an effect." The Court found no such express language in Order No. 415.
It was held that "application of the newly introduced ACR criterion of securing 65% aggregate marks to the period in question effectively alter the service conditions of the petitioner in a retrospective manner." The Court concluded that such retrospective application "violates the guarantee of fairness and equality enshrined under Article 14 of the Constitution."
On the issue of adverse ACR during sanctioned medical leave, the Court observed: "Recording adverse remarks under such circumstances can be inherently unfair and arbitrary, as it is not based on active service or observable conduct during the period in question." It also stated: "To penalise an employee for absence during such a period... is not only legally untenable but also violates the principles of equity and humane administration."
The Court quashed the non-speaking order that had rejected the petitioner’s representation. It held: "Quashing the impugned order Annexure-ll rejecting the petitioner’s representation without assigning any cogent reasons for such rejection." The Bench also declared the adverse entry as unlawful, stating: "Quashing the impugned entry of 'below average' in the annual confidential report of the petitioner for the year 2020."
It directed the respondents to consider the petitioner for promotion, recording: "Accordingly, the respondents are directed to accord consideration to the claim of petitioner for promotion to the post of Head Assistant with retrospective effect from the date her juniors were promoted i.e. 24.11.2022 as Head Assistant, 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."
The Court further instructed the Registrar General to ensure proper notification of Order No. 415: "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... and issue a formal notification... only after obtaining approval from Hon’ble the Chief Justice of the High Court."
The judgment concluded with a caution: "Any attempt to enforce the said order without adherence to these procedural safeguards, shall render its application vulnerable to legal challenge."
Advocates Representing the Parties:
For the Petitioner: Mr. Altaf Haqani, Senior Advocate with Mr. Shakir Haqani, Advocate
For the Respondents: Mr. M.I. Qadiri, Senior Advocate for Respondents Nos. 2 to 4
Case Title: Baseer-Ul-Haq Hussami v. UT of J&K and Others
Case Number: WP(C) 323/2023
Bench: Justice Wasim Sadiq Nargal, Justice Rajesh Sekhri
