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Poll: Should Annual Confidential Report of Officials be disclosed under RTI?

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Thread: Disclosures of Annual Confidential Reports (ACR) comes under Official Secret Act

  1. #217
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    C J Karira
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    Re: Disclosures of Annual Confidential Reports (ACR) comes under Official Secret Act


    The title of the news report is not very correct.

    CIC has not allowed the disclosure of ACR but only the "entries' in the ACR.

    The full order of the CIC is attached to this post.


    Attached Files Attached Files

  2. #218

    Re: Disclosures of Annual Confidential Reports (ACR) comes under Official Secret Act


    DEAR INFO WARRIORS/ ACTIVE RTI ACTIVISTS
    In Addition to the the above Transformations of Information,Be it Known of the following Landmark Judgement of the Supreme Court of India.


    The Supreme Court of India has given a landmark judgment expanding the meaning of natural justice and ruled that all entries in the Annual Confidential Report (ACR) be communicated to the concerned employee. It appears that not many employees have used this judgment to know the entries in their ACRs.

    In the civil appeal No. 7631 of 2002/dated 12th May 2008 (Dev Dutt vs Union of India) Justice Markandey Katju observed that:

    “In our opinion, every entry (and not merely a poor or adverse entry) relating to an employee under the State or an instrumentality of the State, whether in civil, judicial, police or other service (except the military) must be communicated to him, within a reasonable period, and it makes no difference whether there is a bench mark or not. Even if there is no bench mark, non-communication of an entry may adversely affect the employee’s chances of promotion (or getting some other benefit), because when comparative merit is being considered for promotion (or some other benefit) a person having a ‘good’ or ‘average’ or ‘fair’ entry certainly has less chances of being selected than a person having a ‘very good’ or ‘outstanding’ entry.

    A person getting any of the entries ...should be communicated the entry so that he has an opportunity of making a representation praying for its up-gradation, and such a representation must be decided fairly and within a reasonable period by the concerned authority.

    In our opinion if the Office Memorandum dated 10/11.09.1987, is interpreted to mean that only adverse entries (i.e. ‘poor’ entry) need to be communicated and not ‘fair’, ‘average’ or ‘good’ entries, it would become arbitrary (and hence illegal) since it may adversely affect the incumbent’s chances of promotion, or get some other benefit.

    For example, if the benchmark is that an incumbent must have ‘very good’ entries in the last five years, then if he has ‘very good’ (or even ‘outstanding’) entries for four years, a ‘good’ entry for only one year may yet make him ineligible for promotion. This ‘good’ entry may be due to the personal pique of his superior, or because the superior asked him to do something wrong which the incumbent refused, or because the incumbent refused to do sycophancy of his superior, or because of caste or communal prejudice, or for some other extraneous consideration.

    In our opinion, every entry in the A.C.R. 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. This is because non-communication of such an entry may adversely affect the employee in two ways: (1) Had the entry been communicated to him he would know about the assessment of his work and conduct by his superiors, which would enable him to improve his work in future (2) He would have an opportunity of making a representation against the entry if he feels it is unjustified, and pray for its up-gradation.

    Originally there were said to be only two principles of natural justice: (1) the rule against bias and (2) the right to be heard (audi alteram partem). However, subsequently, as noted in A.K. Kraipak’s case (supra) and K.L. Shephard’s case (supra), some more rules came to be added to the rules of natural justice, e.g. the requirement to give reasons vide S.N. Mukherji vs. Union of India AIR 1990 SC 1984. In Maneka Gandhi vs. Union of India (supra) (vide paragraphs 56 to 61) it was held that natural justice is part of Article 14 of the Constitution.

    Thus natural justice has an expanding content and is not stagnant. It is therefore open to the Court to develop new principles of natural justice in appropriate cases.

    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 ... in the Annual Confidential Report of a public servant, whether in civil, judicial, police or any other State service (except the military), must be communicated to him within a reasonable period... This in our opinion is the correct legal position even though there may be no Rule/G.O. requiring communication of the entry, or even if there is a Rule/G.O. prohibiting it, because the principle of non-arbitrariness in State action as envisaged by Article 14 of the Constitution in our opinion requires such communication. Article 14 will override all rules or government orders.

    We further hold that when the entry is communicated to him the public servant should have a right to make a representation against the entry to the concerned authority, and the concerned authority must decide the representation in a fair manner and within a reasonable period. We also hold that an authority higher than the one who gave the entry must decide the representation; otherwise the likelihood is that the representation will be summarily rejected without adequate consideration, as it would be an appeal from Caesar to Caesar. All this would be conducive to fairness and transparency in public administration, and would result in fairness to public servants. The State must be a model employer, and must act fairly towards its employees. Only then would good governance be possible.

    We, however, make it clear that the above directions will not apply to military officers because the position for them is different as clarified by this Court in Union of India vs. Major Bahadur Singh 2006 (1) SCC 368.”


    Give maximum publicity so that the applicability this verdict under RTI can be explored.

    With Regards
    GM VISHNU

  3. #219

    Re: Disclosures of Annual Confidential Reports (ACR) comes under Official Secret Act


    Quote Originally Posted by GM VISHNU View Post
    DEAR INFO WARRIORS/ ACTIVE RTI ACTIVISTS
    In Addition to the the above Transformations of Information,Be it Known of the following Landmark Judgement of the Supreme Court of India.


    The Supreme Court of India has given a landmark judgment expanding the meaning of natural justice and ruled that all entries in the Annual Confidential Report (ACR) be communicated to the concerned employee. It appears that not many employees have used this judgment to know the entries in their ACRs.

    In the civil appeal No. 7631 of 2002/dated 12th May 2008 (Dev Dutt vs Union of India) Justice Markandey Katju observed that:

    “In our opinion, every entry (and not merely a poor or adverse entry) relating to an employee under the State or an instrumentality of the State, whether in civil, judicial, police or other service (except the military) must be communicated to him, within a reasonable period, and it makes no difference whether there is a bench mark or not. Even if there is no bench mark, non-communication of an entry may adversely affect the employee’s chances of promotion (or getting some other benefit), because when comparative merit is being considered for promotion (or some other benefit) a person having a ‘good’ or ‘average’ or ‘fair’ entry certainly has less chances of being selected than a person having a ‘very good’ or ‘outstanding’ entry.

    A person getting any of the entries ...should be communicated the entry so that he has an opportunity of making a representation praying for its up-gradation, and such a representation must be decided fairly and within a reasonable period by the concerned authority.

    In our opinion if the Office Memorandum dated 10/11.09.1987, is interpreted to mean that only adverse entries (i.e. ‘poor’ entry) need to be communicated and not ‘fair’, ‘average’ or ‘good’ entries, it would become arbitrary (and hence illegal) since it may adversely affect the incumbent’s chances of promotion, or get some other benefit.

    For example, if the benchmark is that an incumbent must have ‘very good’ entries in the last five years, then if he has ‘very good’ (or even ‘outstanding’) entries for four years, a ‘good’ entry for only one year may yet make him ineligible for promotion. This ‘good’ entry may be due to the personal pique of his superior, or because the superior asked him to do something wrong which the incumbent refused, or because the incumbent refused to do sycophancy of his superior, or because of caste or communal prejudice, or for some other extraneous consideration.

    In our opinion, every entry in the A.C.R. 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. This is because non-communication of such an entry may adversely affect the employee in two ways: (1) Had the entry been communicated to him he would know about the assessment of his work and conduct by his superiors, which would enable him to improve his work in future (2) He would have an opportunity of making a representation against the entry if he feels it is unjustified, and pray for its up-gradation.

    Originally there were said to be only two principles of natural justice: (1) the rule against bias and (2) the right to be heard (audi alteram partem). However, subsequently, as noted in A.K. Kraipak’s case (supra) and K.L. Shephard’s case (supra), some more rules came to be added to the rules of natural justice, e.g. the requirement to give reasons vide S.N. Mukherji vs. Union of India AIR 1990 SC 1984. In Maneka Gandhi vs. Union of India (supra) (vide paragraphs 56 to 61) it was held that natural justice is part of Article 14 of the Constitution.

    Thus natural justice has an expanding content and is not stagnant. It is therefore open to the Court to develop new principles of natural justice in appropriate cases.

    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 ... in the Annual Confidential Report of a public servant, whether in civil, judicial, police or any other State service (except the military), must be communicated to him within a reasonable period... This in our opinion is the correct legal position even though there may be no Rule/G.O. requiring communication of the entry, or even if there is a Rule/G.O. prohibiting it, because the principle of non-arbitrariness in State action as envisaged by Article 14 of the Constitution in our opinion requires such communication. Article 14 will override all rules or government orders.

    We further hold that when the entry is communicated to him the public servant should have a right to make a representation against the entry to the concerned authority, and the concerned authority must decide the representation in a fair manner and within a reasonable period. We also hold that an authority higher than the one who gave the entry must decide the representation; otherwise the likelihood is that the representation will be summarily rejected without adequate consideration, as it would be an appeal from Caesar to Caesar. All this would be conducive to fairness and transparency in public administration, and would result in fairness to public servants. The State must be a model employer, and must act fairly towards its employees. Only then would good governance be possible.

    We, however, make it clear that the above directions will not apply to military officers because the position for them is different as clarified by this Court in Union of India vs. Major Bahadur Singh 2006 (1) SCC 368.”


    Give maximum publicity so that the applicability this verdict under RTI can be explored.

    With Regards
    GM VISHNU
    Thankyou Vishnuji for this terrific ruling

  4. #220
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    Name:
    sangram keshari nayak
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    Re: Disclosures of Annual Confidential Reports (ACR) comes under Official Secret Act



    Unless, there is transperency and clarity in communication on adverse ACR, one does not really know where things went wrong. While disposing of representation against any adverse ACR, there should at least be a speaking order. Simply communicating that, "earlier decision taken in the matter stands good" without any elaboration is against principles of natural justice. Moreover, one must know what the Reporting officer (immediate boss), Reviewing officer and Accepting officer have reacted to your self-apprisal. Anyone of these functionaries can armtwist to cause damage to one's career. Therefore, entries made by each Officer should be made available under RTI Act to establish if any subjective consideration has played any role.

  5. #221
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    NK Agarwal
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    Re: Disclosures of Annual Confidential Reports (ACR) comes under Official Secret Act


    I think this is a very important and informative thread and the discussions/feedback may be allowed to continue in this forum (by courtesy moderators).<?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" /><o:p></o:p>
    To my mind, the major issue at present is not to put up "our own interpretations " on the issue under RTI ACt-2005 but to know various feasible options like (1) What the applicant has to do or (2) What the applicant can do under the circumstances.<o:p></o:p>
    The situation has become complex mainly due to following :<o:p></o:p>
    (1) various SICs and Hon'ble courts have allowed disclosure of ACRs to applicants<o:p></o:p>
    (2) The CIC has still not allowed disclosure and copies of ACRs to applicants.<o:p></o:p>
    (3) The Dev Dutts Decision by Hon'ble Apex court and its implication on RTI ACt-2005<o:p></o:p>
    (4) The provisions of DOPT Memo 0f 2007 on disclosure of ACRs vis-a-vis Dev Dutts decision in 2008.<o:p></o:p>
    (5) Addition of more rules under Natural Justice thus enlarging its meaning.<o:p></o:p>
    I have a strong feeling that instead of an individual this forum can send a politely drafted memorandum covering the points in favour of disclosure of ACRs (inclusive of copies) to CIC for favourable consideration.
    I think the points could be classified under different heads like (1) law and sections of Constitution of India, (2) provisions of Official Secret Act, (3) provisions of RTI ACT-2005 ( Public Interest, confidentiality, mis-use of ACRs), (4) Rules of ACRs - Central Govt. etc.

  6. #222
    Posts
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    C J Karira
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    Re: Disclosures of Annual Confidential Reports (ACR) comes under Official Secret Act


    Quote Originally Posted by nk agarwal View Post
    I have a strong feeling that instead of an individual this forum can send a politely drafted memorandum covering the points in favour of disclosure of ACRs (inclusive of copies) to CIC for favourable consideration.
    I think the points could be classified under different heads like (1) law and sections of Constitution of India, (2) provisions of Official Secret Act, (3) provisions of RTI ACT-2005 ( Public Interest, confidentiality, mis-use of ACRs), (4) Rules of ACRs - Central Govt. etc.
    This is beyond the scope of the forum.
    Please see RTI India - Forum Rules



  7. #223

    Re: Disclosures of Annual Confidential Reports (ACR) comes under Official Secret Act


    why will someone write something about someone which the 1st someone doesnt want others to know.

  8. #224

    Re: Disclosures of Annual Confidential Reports (ACR) comes under Official Secret Act


    It is not the question of writing something which one does not want the other person to know. Such interpretation sounds as if what is written in the first place is something prohibited or taboo. It is not that. It is an evaluation. Not everyone will have the maturity to take it positively or in the right spirit. I had an officer working with me. He is quite competent and very good at his work. We were pulling on excellantly well. When the time for assessment came I made an objective assessment of him. Gave him 'Very Good' grading. After some time he occupied another assignment, where he was in a position to see all ACRs, including his own. He saw what I had written about him and also what I had written about his another colleague, whom I had given 'Outstanding'. From that day onwards, he became absolutely hostile to me and even stopped talking to me. For a long time I did not even realise that he was not talking to me wantedly. I genuinely thought he is busy with his new assignment, which also expected him to keep things confidential and hence he was restricting his speech. But much later I came to know through a common friend that he was hurt that I didnot give him 'outstanding', which he thought he richly deserved. This is how the disclosure spoils the inter-personal relationship. That is one strong reason for not divulging the ACR.
    Last edited by taurus; 28-02-09 at 10:20 PM. Reason: correctins.



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