Jammu & Kashmir High Court – Srinagar Bench
Baseer -Ul- Haq Hussami vs Ut Of J&K Through on 6 August, 2025
1|Page WP(C)323/2023
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR.
WP(C) 323/2023
Reserved on: 23.05.2025
Pronounced on: 06.08.2025
Baseer -Ul- Haq Hussami, D/O Abdul Haq Hussami
R/O Abubaker Colony, Habbak, Srinagar
...Petitioner(s)
Through: Mr. Altaf Haqani, Sr. Advocate with
Mr. Shakir Haqani, Adv.
Vs.
1. UT of J&K through
Commissioner/Secretary to Government Law Department,
Civil Sectt, Srinagar/Jammu
2. High Court of Jammu and Kashmir and Ladakh,
Srinagar/Jammu through its Registrar General
3. Principal Secretary to the
Hon'ble Chief Justice,
High court of Jammu & Kashmir and Ladakh, Srinagar
4. Registrar Judicial, Srinagar Wing of High Court of J&K and
Ladakh.
5. Salim Rashid Rather, Head Assistant
6. Sheikh Davood, Head Assistant
Respondent Nos. 5 and 6 C/o Registrar Judicial
High court of J&K and Ladakh, Srinagar
...Respondent(s)
Through Mr. M.I.Qadiri, Sr. Advocate for Respondent Nos. 2 to 4
None for respondent Nos. 5 and 6.
CORAM:
HON'BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE.
HON'BLE MR. JUSTICE RAJESH SEKHRI, JUDGE
JUDGEMENT
Per Wasim Sadiq Nargal, J
PRAYER
The instant writ petition has been filed on behalf of the petitioner, praying
for the following reliefs:-
2|Page WP(C)323/2023
i) Writ, order or direction including one in the nature of Certiorari :-
a) quashing the impugned order- Annexure-l so far as the same
pertains to the promotion of respondents 5 and 6 over the head of
the petitioner in the post of the Head Assistant;
b) quashing the impugned order Annexure-ll rejecting the
petitioner’s representation by a non-speaking order;
c) quashing the impugned entry of “below average” in the annual
confidential report of the petitioner for the year 2020, as conveyed
to her vide communications dated 4-12-2022 and 17-1-2023
(Annexures -III and IV).
ii) Writ, order or direction including one in the nature of Mandamus,
commanding upon the respondents not to give any effect to the
impugned orders and with a further direction upon them to accord
consideration to the claim of the petitioner for her promotion to
the post of Head Assistant w.e.f 24-11-2022, without taking into
consideration the adverse uncommunicated ACR of the year 2020
and grant her all the benefits of seniority, pay and grade alongwith
arrears.
FACTUAL MATRIX OF THE CASE
1. The petitioner, a Senior Assistant in the High Court of J&K and
Ladakh, challenges the order dated 24.11.2022, whereby she was
denied promotion to the post of the Head Assistant and superseded by
her juniors. 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. The petitioner contends that the
3|Page WP(C)323/2023
adverse ACRs recorded for 2019-2021 were never communicated to
her, violating her right to make representations against them. She
further contends 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 petitioner seeks
directions for her promotion with retrospective effect from the date
her juniors were promoted.
2. The respondents, on the other hand, admit that there is no record of
communication of adverse ACRs but submitted that the petitioner’s
failure to achieve the 65% aggregate marks, disqualified her from
promotion. The further stand of the respondents 2 to 4 is that the
petitioner did not challenge the validity of Order No. 415 in her writ
petition, and as such, no relief can be granted on this ground. They
further contend 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. Even if Order No. 415 is excluded, the
respondents submit that promotions to the post of Head Assistant are
based on seniority-cum-merit, and evaluation of ACRs remains an
integral part of the process. Accordingly, they pray for dismissal of
the writ petition while assuring that the petitioner’s case for
promotion will be considered in future as per the applicable rules and
practices.
4|Page WP(C)323/2023
SUBMISSIONS ON THE BEHALF OF THE PETITIONER
3. Learned Counsel appearing on behalf of the petitioner, submits that
the impugned orders denying promotion to the petitioner are illegal,
arbitrary, and contrary to settled principles of law, and are liable to be
quashed. The said orders are based on an adverse Annual
Confidential Report (ACR) for the year 2020, which was not
communicated to the petitioner at the relevant time. The failure to
communicate the adverse ACR deprives the petitioner of an
opportunity to represent against the same, which is a fundamental
violation of law.
4. It is the specific case of the petitioner that the respondents, while
considering her case for promotion, were not aware of the fact that
the petitioner had rendered unblemished service for over fifteen
years, except for the alleged adverse ACR for 2020. This aspect of
the matter was deliberately concealed and suppressed by the
authorities in their decision-making process. The respondents failed
to appreciate that the petitioner was on sanctioned medical leave for a
substantial period in 2020 and that the entire year was severely
affected by the COVID-19 pandemic, during which the petitioner was
not engaged in any misconduct that could justify a “below average”
rating in her ACR.
5. The learned senior counsel, Mr. Haqani, further submits that the non-
communication of the adverse ACR to the petitioner goes to the root
of the case and renders the denial of promotion legally unsustainable.
5|Page WP(C)323/2023
6. Learned senior counsel also submits that the respondents have
committed a grave illegality by rejecting the petitioner’s
representation vide a non-speaking order dated 16.12.2022. Such an
order, passed without assigning reasons, reflects complete non-
application of mind and violates the settled principle that reasons are
the soul of administrative and quasi-judicial decisions.
7. The learned counsel highlights that the petitioner was senior to
respondents No. 5 and 6 in the seniority list and was otherwise fully
eligible for promotion. Denial of promotion to the petitioner, while
promoting her juniors, is a clear case of supersession and violates the
principle of seniority-cum-merit applicable in such cases.
8. It is further submitted that the respondents have mechanically applied
guidelines for assessment and promotion which were neither
applicable to the post of the petitioner nor duly published or notified.
This lack of proper procedure reflects arbitrariness and renders the
impugned orders legally unsustainable.
9. Learned Counsel lastly submits that the petitioner has been subjected
to serious prejudice as a result of the impugned orders and prays that
the impugned orders be quashed. It is further prayed that the
respondents be directed to consider the petitioner’s claim for
promotion to the post of Head Assistant w.e.f. 24.11.2022, with all
consequential benefits, without taking into account the
uncommunicated and unjustified ACR for the year 2020.
6|Page WP(C)323/2023
SUBMISSIONS ON BEHALF OF THE RESPONDENTS
10. Per Contra, The Learned Counsel appearing on behalf of the
respondents submits that the writ petition filed by the petitioner is
devoid of merit, misconceived, and liable to be dismissed. The denial
of promotion to the petitioner is neither arbitrary nor illegal but is
based on objective criteria and service records duly considered by the
competent authority.
11. It is 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. This order, issued with the approval of the Hon’ble Chief
Justice and Administrative Committee of the High Court, lays down a
uniform standard for evaluating merit in promotions and has been
consistently applied for all non-gazetted posts in the High Court over
the last several years.
12. The learned counsel further submits that the petitioner has not
challenged the validity or legality of Order No. 415 in her writ
petition, and no relief has been sought against it in the prayer clause.
In the absence of such a challenge, the petitioner cannot now contend
that the said order is inapplicable to her case. Reliance is placed on
Mukesh Singh Kushwah v. State of MP, 2002 (1) SCC 598, wherein
it was held that a relief not claimed, cannot be granted by the Court.
13. It is the specific case of the respondents that the petitioner’s adverse
ACR for the year 2020, though not formally communicated, was duly
recorded in the service records and formed part of the assessment
7|Page WP(C)323/2023
process for promotions. The absence of formal communication does
not by itself vitiate the assessment, especially when the evaluation is
based on cumulative service records.
14. Learned counsel, Mr. M.I. Qadari, Senior Advocate, submits that 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.
15. It is further submitted that even if Order No. 415 dated 05.10.2020 is
excluded, the principle of seniority-cum-merit as envisaged under
Order No. 517 dated 24.10.2008 requires consideration of both
seniority and merit. The petitioner’s merit was duly assessed on the
basis of her ACRs for the preceding five years, and she did not meet
the required standard for promotion.
16. Learned senior counsel further emphasizes that the petitioner’s
supersession does not violate any of her rights, as promotion is not a
matter of right but is subject to availability of posts and suitability of
the candidate. The respondents acted in accordance with established
practice and procedure while denying promotion to the petitioner.
17. In view of the above, the learned counsel for the respondents submits
that the impugned orders are legal, justified, and passed after due
consideration of the petitioner’s service record. The writ petition is
without merit and liable to be dismissed.
8|Page WP(C)323/2023
ISSUES TAKEN UP FOR DETERMINATION
18. Heard learned counsel for both the parties at length and carefully
perused the material on record. The following issues arise for
determination:
Issue no. i: Whether the non-communication of adverse entries
in the petitioner’s Annual Confidential Reports
(ACRs) renders the respondent’s decision to deny
promotion legally unsustainable.
Issue no. ii: Whether Executive Order No. 415 dated 05.10.2020,
originally applicable to gazetted staff, could have
been extended and applied to non-gazetted staff
without proper notification highlighting the revised
benchmark for promotion?
Issue no. iii: Whether Executive Order No. 415 operates
retrospectively so as to govern the consideration of
promotions pertaining to a period prior to its
issuance.
Issue no. iv: Whether the recording of the petitioner’s Annual
Confidential Report (ACR) for the year 2020 during
the period of her sanctioned medical leave due to
COVID-19, without due communication of the
recorded remarks irrespective of whether they were
favourable, average, or adverse vitiates the
procedural fairness required under service
jurisprudence.
LEGAL ANALYSIS
19. The issues framed above are now taken up for determination by us.
Each issue is examined individually in the following paragraphs,
upon a careful consideration of the pleadings, the evidence placed on
record, and the applicable legal principles as expounded in judicial
precedents.
20. ISSUE No. I: Whether the non-communication of adverse
Annual Confidential Reports (ACRs) vitiates the respondent’s
decision to deny promotion to the petitioner.
At the very core of the petitioner’s grievance lies the allegation that
her promotion was denied on the basis of adverse entries in her
9|Page WP(C)323/2023
Annual Confidential Reports (ACRs) for the years 2019-2020 and
2021, which were admittedly never communicated to her. This Court
considers it essential to first address this issue, as it strikes at the
foundation of fairness, transparency, and adherence to the principles
of natural justice in service jurisprudence. We find it imperative to
first address the issue of non-communication of adverse ACRs, as it
strikes at the heart of fairness and natural justice in public service
law.
21. Before deciding the above issue, we deem it proper to refer to the
judgment rendered by The Apex Court in, Dev Dutt v. Union of
India, (2008) 8 SCC 725, the Hon’ble Supreme Court unequivocally
held that:
“17. In our opinion, 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. 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 upgradation. Hence, 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.”
22. The Court reasoned that the right of an employee to be informed of
any adverse material recorded in their service dossier is a
fundamental facet of fairness, accountability, and transparency in
service jurisprudence. This right assumes greater significance where
such adverse material is proposed to be relied upon to deny
promotional benefits or career advancement. The principles of audi
10 | P a g e WP(C)323/2023
alteram partem, which mandate that no individual shall be
condemned unheard, apply with full force to service matters where
adverse entries in Annual Confidential Reports (ACRs) have a direct
bearing on the employee’s rights and legitimate expectations. Denial
of such an opportunity not only violates natural justice but also
renders any decision based on uncommunicated material, legally
unsustainable.
23. The law laid down by the Apex Court in Dev Dutt v. Union of India,
(2008) has been reiterated in Sukhdev Singh vs. Union Of India and
others, 2013 (9) SCC 566 as under:
“5. In paras 37 and 41 of the Report this Court then observed as
follows: (Dev Dutt case-, SCC pp. 737-38)
“37. 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 authority concerned, and
the authority concerned must decide the representation in a fair
manner and within a reasonable period. We also hold that the
representation must be decided by an authority higher than the
one who gave the entry, 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
41. In our opinion, non-communication of entries in the
annual confidential report of a public servant, whether he is in
civil, judicial, police or any other service (other than the
military), certainly has civil consequences because it may affect
his chances for promotion or get other benefits (as already
discussed above). Hence, such non-communication would be
arbitrary, and as such violative of Article 14 of the Constitution.”
24. It is a well-established principle in service jurisprudence that any
adverse entry in the Annual Confidential Report (ACR) must be
communicated to the concerned employee in a timely manner,
11 | P a g e WP(C)323/2023
particularly when such entry is likely to affect the employee’s service
prospects, including promotion.
25. Keeping in view the above, we find that lowering down of ACRs
from “very good” to “below average” would require the respondents
to give an opportunity of hearing to the petitioner after conveying the
said remarks.
26. In the present case, the respondents have admitted that the adverse
Annual Confidential Reports (ACRs) for the years 2019-2020 and
2021 were not communicated to the petitioner, thereby depriving her
of the opportunity to make a representation or seek their review in
accordance with law. The consideration of such uncommunicated
entries while denying her promotion is in violation of the principles
of natural justice, particularly the rule of audi alteram partem, and is
manifestly arbitrary, thus offending Article 14 of the Constitution. As
laid down in Dev Dutt v. Union of India and consistently reiterated
in subsequent judgments, the reliance on uncommunicated adverse
remarks in ACRs vitiates the entire promotion process, rendering the
consequential decision invalid and unsustainable in law. The
respondents’ failure to adhere to the mandatory requirement of
communication has, therefore, not only infringed the petitioner’s
statutory and constitutional rights but has also tainted the selection
process with illegality.
27. Therefore, we hold that the non-communication of the relevant ACRs
is the most fundamental flaw and strikes at the very root of the
decision-making process adopted by the respondents. It constitutes a
12 | P a g e WP(C)323/2023
grave violation of the principles of natural justice and renders the
entire exercise manifestly arbitrary and procedurally unfair. Such a
fundamental defect cannot be cured or overlooked and decision taken
by the respondents by virtue of orders impugned, cannot sustain the
test of law and is liable to be rejected.
Issue no. I, is decided accordingly.
28. ISSUE No.II: Whether Executive Order No. 415 dated 05.10.2020,
originally applicable to gazetted staff, could have been extended
and applied to non-gazetted staff without proper notification
highlighting the revised benchmark for promotion?
29. Upon a careful examination of the material on record and in light of
the settled legal principles, this Court is of the considered view that
Executive Order No. 415 dated 05.10.2020, which prescribed a revised
benchmark of 65% aggregate marks in Annual Confidential Reports
(ACRs) for promotion, 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.
30. The records reveal that there was no contemporaneous notification,
office memorandum, or circular issued by the Registrar General or
the Administrative Department that expressly made the said executive
order applicable to non-gazetted employees. No attempt was made to
notify or circulate the revised benchmark among non-gazetted
employees, nor was any opportunity afforded to them to acquaint
13 | P a g e WP(C)323/2023
themselves with or prepare for the application of such an elevated
standard.
31. In the absence of any such formal notification, the affected category
of non-gazetted staff had no reasonable means of knowing that the
eligibility criteria for promotion had been altered. The fundamental
principles of natural justice demand that rules or standards that
impose new obligations or alter existing service conditions, must be
duly published and communicated to those affected.
32. With a view to fortify this principle, we deem it proper to refer to the
judgement passed by the Apex Court in Harla v. State of Rajasthan,
AIR 1951 SC 467, wherein the Hon’ble Supreme Court
authoritatively held:
9. Natural justice requires that before a law can become
operative it must be promulgated or published. It must be
broadcast in some recognisable way so that all men may know
what it is; or, at the very least, there must be some special rule or
regulation or customary channel by or through which such
knowledge can be acquired with the exercise of due and
reasonable diligence. The thought that a decision reached in the
secret recesses of a chamber to which the public have no access
and to which even their accredited representatives have no access
and of which they can normally know nothing, can nevertheless
affect their lives, liberty and property by the mere passing of a
resolution without anything more is abhorrent to civilised man. It
shocks his conscience. In the absence therefore of any law, rule,
regulation or custom, we hold that a law cannot come into being
in this way. Promulgation or publication of some reasonable sort
is essential.
33. This principle flows from the broader doctrine of audi alteram
partem and the right to natural justice, as individuals cannot be
expected to comply with unknown norms or be penalised for their
breach.
34. Similarly, in B.K. Srinivasan v. State of Karnataka, (1987) 1 SCC
658, the Hon’ble Supreme Court reiterated:
14 | P a g e WP(C)323/2023
15. There can be no doubt about the proposition that where a
law, whether parliamentary or subordinate, demands
compliance, those that are governed must be notified directly and
reliably of the law and all changes and additions made to it by
various processes. Whether law is viewed from the standpoint of
the “conscientious good man” seeking to abide by the law or
from the standpoint of justice Holmes’s “unconscientious bad
man” seeking to avoid the law, law must be known, that is to say,
it must be so made that it can be known. We know that delegated
or subordinate legislation is all-pervasive and that there is hardly
any field of activity where governance by delegated or
subordinate legislative powers is not as important if not more
important, than governance by parliamentary legislation. But
unlike parliamentary legislation which is publicly made,
delegated or subordinate legislation is often made unobtrusively
in the chambers of a Minister, a Secretary to the Government or
other official dignitary. It is, therefore, necessary that
subordinate legislation, in order to take effect, must be published
or promulgated in some suitable manner, whether such
publication or promulgation is prescribed by the parent statute or
not. It will then take effect from the date of such publication or
promulgation. Where the parent statute prescribes the mode of
publication or promulgation that mode must be followed. Where
the parent statute is silent, but the subordinate legislation itself
prescribes the manner of publication, such a mode of publication
may be sufficient, if reasonable. If the subordinate legislation
does not prescribe the mode of publication or if the subordinate
legislation prescribes a plainly unreasonable mode of
publication, it will take effect only when it is published through
the customarily recognised official channel, namely, the Official
Gazette or some other reasonable mode of publication. There
may be subordinate legislation which is concerned with a few
individuals or is confined to small local areas. In such cases
publication or promulgation by other means may be sufficient.
The court further observed that administrative instructions, even if
validly issued, must be publicised effectively if they alter existing
rights or impose new burdens.
35. The Hon’ble Supreme Court in case titled as R.Ranjith Singh & Ors
v State Of Tamil Nadu & Ors. reported as 2025 SCC Online SC
1009, has made it clear that:
21. This Court in case of Jaiveer Singh v State of
Utrakhand 2023INSC 1204 has held as under:
34. It can thus be seen that it is a trite law that the
Government cannot amend or supersede statutory
rules by administrative instructions, but if the rules
are silent on any particular point, it can fill up the
gaps and supplement the rules and issue
15 | P a g e WP(C)323/2023instructions not inconsistent with the rules already
framed. It is a settled proposition of law that an
authority cannot issue orders/office memorandum/
executive instructions in contravention of the
statutory rules. However, instructions can be issued
only to supplement the statutory rules but not to
supplant it. This Court has again held in the
aforesaid case that the Government cannot issue
executive instructions in contravention of the
statutory rule.
In the present case, Executive Order No. 415 dated 05.10.2020,
which introduced a new benchmark for promotion eligibility, was
neither traceable to any statutory rule nor duly notified or
communicated to the affected employees. Its retrospective
application, therefore, not only offends the principle of administrative
fairness and transparency but also violates the doctrine of legitimate
expectation. The attempt to apply the benchmark fixed under
Executive Order No. 415, originally confined to gazetted staff, to
non-gazetted employees without any formal notification or
publication is wholly arbitrary and violates the doctrine of legitimate
expectation and administrative fairness.
36. Moreover, nothing has been placed on record to show that the
Registrar General, after obtaining approval from the Hon’ble Chief
Justice as the competent authority, ever took steps to formally notify
this change or to make it applicable to the cadre of non-gazetted
employees. This constitutes a serious administrative omission,
particularly when the order was used to deny promotion to the
petitioner.
16 | P a g e WP(C)323/2023
37. In light of the above, this Court holds that Executive Order No. 415
could not have been extended to non-gazetted employees without
formal notification and communication, especially when it introduced
a substantive change in promotion criteria. The failure to notify the
same has resulted in denial of due opportunity to the petitioner,
rendering the action arbitrary and violative of Articles 14 and 16 of
the Constitution of India.
38. ISSUE NO. III: Whether Executive Order No. 415 operates
retrospectively so as to govern the consideration of promotions
pertaining to a period prior to its issuance.
It is now trite in law that executive orders or administrative
instructions altering service conditions cannot operate retrospectively
unless the language of the order expressly provides for such an effect.
Retrospective application is generally frowned upon
as it offends the principles of fairness and violates vested rights.
39. This principle was reiterated in State of Punjab v. Bhajan Kaur,
(2008) 12 SCC 112, where the Apex Court observed:
“9. A statute is presumed to be prospective unless held to be
retrospective, either expressly or by necessary implication. A
substantive law is presumed to be prospective. It is one of the
facets of the rule of law.”
40. Further the Hon’ble Supreme Court in the case titled Madishetti Bala
Ramul v. Land Acquisition Officer reported in (2007) 9 SCC 650
has held as under:
19. In Land Acquisition Officer-cum-SWO v. B.V. Reddy and
Sons this Court opined that Section 25 being not a
procedural provision will have no retrospective effect, holding :
(SCC p. 471, para 6)
“6. Coming to the second question, it is a well-settled principle of
construction that a substantive provision cannot be retrospective
in nature unless the provision itself indicates the same. The
amended provision of Section 25 nowhere indicates that the same
17 | P a g e WP(C)323/2023would have any retrospective effect. Consequently, therefore, it
would apply to all acquisitions made subsequent to 24-9-1984,
the date on which Act 68 of 1984 came into force. The Land
Acquisition (Amendment) Bill of 1982 was introduced in
Parliament on 30-4-1982 and came into operation with effect
from 24-9-1984.
41. In the present case, Order No. 415 dated 05.10.2020 introduced a
new criterion of securing 65% aggregate marks in Annual
Confidential Reports (ACRs) as a precondition for promotion. The
petitioner’s case for promotion was under consideration for the period
2017-2021, a substantial portion of which precedes the issuance of
the impugned order.
42. The 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. Such
application prejudices her vested right to be considered for promotion
under the previously existing criteria, which did not prescribe any
minimum aggregate threshold for ACRs.
43. In the present case, the application of Order No. 415 introduces a new
obligation requiring employees to secure a minimum of 65%
aggregate marks in their Annual Confidential Reports (ACRs) for
eligibility to promotion. This requirement is sought to be enforced in
respect of past years for which the petitioner’s ACRs had already
been recorded without any prior knowledge of such a threshold.
Imposing this condition retrospectively, squarely falls within the
mischief of retrospective operation and is legally impermissible.
18 | P a g e WP(C)323/2023
44. The Honble Apex court in case titled as Land Acquisition Officer
Cum DSWO, A.P v. B.V. Reddy & Sons, reported in (2002) 3 SCC
463 has consistently held that:
“6. Coming to the second question, it is a well-settled principle of
construction that a substantive provision cannot be retrospective
in nature unless the provision itself indicates the same. The
amended provision of Section 25 nowhere indicates that the same
would have any retrospective effect. Consequently, therefore, it
would apply to all acquisitions made subsequent to 24-9-1984,
the date on which Act 68 of 1984 came into force. The Land
Acquisition (Amendment) Bill of 1982 was introduced in
Parliament on 30-4-1982 and came into operation with effect
from 24-9-1984. Under the amendment in question, the
provisions of Section 23(2) dealing with solatium were amended
and Section 30(2) of the amended Act provided that the
provisions of subsection (2) of Section 23 of the principal Act as
amended by clause (b) of Section 15 shall apply and shall be
deemed to have applied, also to and in relation to any award
made by the Collector or court or to any order passed by the High
Court or the Supreme Court in appeal against any such award
under the provisions of the principal Act, after 30-4-1982 and
before the commencement of the Act. It is because of the
aforesaid provision, the question cropped up as to whether in
respect of an award passed by the Collector between the two
dates, the amended provision will have an application or not and
that question has been answered by this Court in the Constitution
Bench decision in Union of India v. Raghubir Singh. Sub-section
(2) of Section 30 has at all no reference to the provisions of
Section 25 of the Act. In that view of the matter, question of
applicability of the amended provisions of Section 25 of the Act to
an award of the Collector made earlier to the amendment and the
matter was pending in appeal, does not arise. In our considered
opinion, the amended provisions of Section 25 of the Act, not
being retrospective in nature, the case in hand would be
governed by the unamended provisions of Section 25 of the Act.”
19 | P a g e WP(C)323/2023
45. We are firmly of the view that the retrospective application of
Executive Order No. 415 dated 05.10.2020 to promotion processes
covering the period from 2017 to 2021 is neither justified nor legally
sustainable. The said order introduced a new eligibility condition
requiring 65% aggregate marks in the ACRs which was neither
notified nor communicated to the employees concerned at the
relevant time. As such, the petitioner and similarly placed employees
were deprived of an fair opportunity to comply with or address this
new requirement. Imposing such a standard retrospectively not only
unsettles vested rights but also causes serious prejudice and
administrative uncertainty. Revisiting settled promotions after several
years disturbs the finality of service matters, generates avoidable
litigation, and undermines institutional fairness. In our view,
enforcing an unpublished and uncommunicated executive instruction
with retrospective effect is arbitrary, unreasonable, and impermissible
both in law and in equity.
46. Accordingly, the respondents’ attempt to apply the new standard
introduced under Executive Order No. 415 requiring a minimum of
65% aggregate marks in Annual Confidential Reports (ACRs) to the
petitioner’s case is legally unsustainable. Such retrospective
application of a criterion that was neither in existence nor
communicated during the relevant assessment years directly offends
the well-settled principle of non- retrospectivity in service law. It also
violates the guarantee of fairness and equality enshrined under
Article 14 of the Constitution, as administrative authorities are
20 | P a g e WP(C)323/2023
required to act in a just, transparent, and non-arbitrary manner.
Moreover, this action undermines the doctrine of legitimate
expectation, which protects employees from arbitrary alterations of
service conditions and ensures that they are not prejudiced by
changes introduced without adequate prior notice or opportunity to
adjust their conduct.
47. Order No. 415, having been issued on 05.10.2020, cannot lawfully be
applied to the petitioner’s case retrospectively. Thus, we hold that, its
application to a period prior to its issuance is legally unsustainable,
arbitrary, and violative of the petitioner’s rights.
Issue no. III is decided, accordingly.
48. ISSUE NO. IV: Whether the recording of the petitioner’s Annual
Confidential Report (ACR) for the year 2020 during the period of
her sanctioned medical leave due to COVID-19, without due
communication of the recorded remarks irrespective of whether
they were favourable, average, or adverse vitiates the procedural
fairness required under service jurisprudence?
49. An ACR is meant to be an objective assessment of an employee’s
performance, conduct, and work output during a defined reporting
period. When an employee is on sanctioned leave particularly for
medical reasons such as COVID-19, he or she is not actively
discharging duties and therefore cannot be evaluated on performance
metrics during that time. 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.
Further, the principles of natural justice demand that any evaluation
which may adversely affect an employee’s rights such as eligibility
21 | P a g e WP(C)323/2023
for promotion or career advancement must be transparent, fair, and
objectively grounded. An adverse ACR recorded while the employee
was legitimately absent from duty violates this principle, as the
employee has no opportunity to demonstrate performance or defend
against subjective assessments.
50. Moreover, as held by the Hon’ble Supreme Court in Dev Dutt v.
Union of India [(2008) 8 SCC 725], even non-adverse or ‘average’
entries must be communicated if they can impact promotional
prospects. It logically follows that adverse remarks recorded during a
period of sanctioned leave, without any valid basis tied to actual
performance, must be communicated with reasons and an opportunity
for the employee to represent against them. Failing to do so renders
such entries procedurally and substantively defective. In addition,
departmental rules, executive instructions, and settled judicial
precedent all underscore that recording of ACRs must reflect actual
work and conduct not presumptions or administrative convenience.
51. In light of the above, recording an adverse ACR during sanctioned
leave especially without due communication cannot withstand legal
scrutiny. It is not only administratively improper, but also vitiates the
evaluation process, thereby compromising the employee’s right to
fair consideration in matters of promotion, postings, and other
service benefits.
22 | P a g e WP(C)323/2023
52. It is the specific stand of the petitioner that she was on duly
sanctioned medical leave for a substantial period in 2020 owing to
COVID-19 and related complications. Despite this, her performance
for that year was assessed as “below average.” Recording an adverse
Annual Confidential Report (ACR) during a period of sanctioned
leave raises serious questions about the fairness, legality, and
propriety of such an evaluation.
53. The law is clear that no adverse remark can be made in an ACR
unless it is based on concrete material reflecting actual work or
misconduct during the reporting period.
54. In the present case, there is no material on record to show that the
petitioner was either engaged in any work or guilty of any misconduct
during her sanctioned leave. Rather, the respondents appear to have
mechanically recorded a “below average” rating without assessing
whether she had an opportunity to demonstrate her performance. Such
action fails the test of fairness, non-arbitrariness, and application of
mind, which are cornerstones of service jurisprudence.
55. This Court also takes judicial notice of the fact that the COVID-19
pandemic constituted an extraordinary public health emergency,
wherein employees across the spectrum were affected physically and
psychologically. Many were absent from work not by choice, but due
to circumstances beyond their control. To penalise an employee for
absence during such a period, particularly when the leave was duly
23 | P a g e WP(C)323/2023
sanctioned, is not only legally untenable but also violates the
principles of equity and humane administration.
56. In light of the above, recording an adverse ACR during sanctioned
leave especially without due communication cannot withstand legal
scrutiny. It is not only administratively improper, but also vitiates the
evaluation process, thereby compromising the employee’s right to
fair consideration in matters of promotion, postings, and other service
benefits.
57. Therefore, we hold that recording a “below average” ACR for the
petitioner during her period of sanctioned medical leave for COVID-
19, is patently unjustified, arbitrary, and legally unsustainable. The
said adverse entry is liable to be set aside, and any reliance on it for
denying her promotion, is illegal and vitiates the entire process of
consideration.
Issue no. IV, is decided accordingly.
CONCLUSION
58. In light of the foregoing analysis, we find that the denial of
promotion to the petitioner on the basis of uncommunicated adverse
Annual Confidential Reports (ACRs), amounts 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
failure of the respondents to communicate such ACRs deprived the
24 | P a g e WP(C)323/2023
petitioner of this vital procedural safeguard and renders the entire
process unsustainable in law.
59. 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. In the absence of such publication or
communication, the said order cannot be enforced against the
petitioner. Administrative instructions that remain un-notified, cannot
be used to alter the service conditions of employees to their
detriment.
60. 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. In the present case, the respondents have sought to apply the
newly introduced criterion of securing a minimum of 65% aggregate
marks in Annual Confidential Reports (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 respondents’ reliance on this
uncommunicated and un-notified order to retrospectively deny the
25 | P a g e WP(C)323/2023
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.
61. Further, the stand taken by the respondents that the criteria prescribed
under executive order no.415 are intended to apply to non-gazetted
staff, does not absolve them of their obligation to ensure wide
publicity and due notification of the said order. The respondents 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. Mere internal application or
selective enforcement cannot suffice to meet the requirement of
transparency and procedural fairness.
62. 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. Only upon such due notification could employees be
expected to make a conscious and informed effort to achieve the
prescribed benchmark. Failure to do so renders the application of the
criteria arbitrary and unsustainable in law.
63. In the absence of any published notification or formal communication
extending the applicability of the benchmark to non-gazetted
employees, it is unreasonable to expect them to anticipate such
standards or orient their performance accordingly. The retrospective
26 | P a g e WP(C)323/2023
application of the rule that was neither made known nor duly
enforced is plainly contrary to law. It violates the principle of legal
certainty, non-arbitrariness and article 14 of the constitution.
64. We are of the considered view that the respondents were legally
bound to give vide publicity to the order if they intended to apply it to
the non-gazetted employees. They cannot rely on internal decisions
or informal practices when the consequences affect the service rights
of individuals. Without proper publication, affected employees cannot
be expected to follow or comply with such criteria.
65. 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.
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.
66. Judicial precedents lend unequivocal support to the petitioner’s case.
Courts have consistently held that uncommunicated adverse entries
and unpublished administrative instructions cannot form the basis for
adverse decisions affecting employees’ service rights. The
petitioner’s claim for promotion with retrospective effect from the
date on which her juniors were promoted is, therefore, well founded
and deserves to be upheld.
67. In weighing the equities of the case, we are persuaded that the
petitioner has suffered substantial prejudice due to administrative
27 | P a g e WP(C)323/2023
lapses, entirely beyond her control. 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.
68. 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 notification shall specifically mention the benchmark criteria and
its effective date.
69. Any attempt to enforce the said order without adherence to these
procedural safeguards, shall render its application vulnerable to legal
challenge.
70. In view of the above findings, the writ petition is allowed and
disposed of in the following manner :
i) Quashing the impugned order Annexure-ll rejecting
the petitioner’s representation without assigning
any cogent reasons for such rejection.
28 | P a g e WP(C)323/2023
ii) Quashing the impugned entry of “below average” in
the annual confidential report of the petitioner for
the year 2020.
71. We further hold that the impugned action denying the petitioner’s
promotion cannot be sustained in law. 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.
72. Disposed of.
(Rajesh Sekhri) (Wasim Sadiq Nargal)
Judge Judge
Jammu:
06. 08.2025
Gh.Nabi/Secy
Whether the Judgment is Reportable: Yes/No
Whether the Judgment is Speaking: Yes/No