Thank you Mr. Gupta for sharing such an important judgement! regards SC Vashishth Advocate-Delhi High Court
2009/2/27 Rakesh Kumar Gupta <rkgd1...@gmail.com> > NOTE: THIS LAND MARK JUDGEMENT PROVIDES GREAT RELEIF TO ALL THOSE > EMPLOYEES, WHO HAVE MISSED THE CHANCE FOR GETTING PROMOTION AND OTHER > BENEFITS DUE TO NOT HAVING TIMELY INFORMATION ABOUT STATUS OF THEIR ACR BY > CONCERNED AUTHORITY, AS HONORABLE SUPREME COURT OF INDIA SAID IN PARAGRAPH > 39 OF THIS FOLLOWING JUDGEMENT: > > “------ 39. 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 (whether poor, fair, average, > good or very good) 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 so that > he can make a representation for its upgradation. 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.------“ > > > > Supreme Court of India - CIVIL APPEAL CASE NO 7631/2002 Dev Dutt vs Union > Of India (Uoi) And Ors. on 12-5-2008 > > > > > > > > > > Supreme Court of India > > Dev Dutt vs Union Of India (Uoi) And Ors. on 12/5/2008 JUDGMENT > Markandey Katju, J. 1. This appeal by special leave has been filed > against the impugned judgment of the Gauhati High Court dated 26.11.2001 > in Writ Appeal No. 447 of 2001. By the aforesaid judgment the Division > Bench of the Gauhati High Court dismissed the Writ Appeal of the appellant > filed against the judgment of the Learned Single Judge dated 21.8.2001. > 2. Heard learned Counsel for the parties and perused the record. 3. The > appellant was in the service of the Border Roads Engineering Service which > is governed by the Border Roads Engineering Service Group 'A' Rules, as > amended. As per these rules, since the appellant was promoted as Executive > Engineer on 22.2.1988, he was eligible to be considered for promotion to > the post of Superintending Engineer on completion of 5 years on the grade > of Executive Engineer, which he completed on 21.2.1993. Accordingly the > name of the appellant was included in the list of candidates eligible for > promotion. 4. The Departmental Promotion Committee (DPC) held its meeting > on 16.12.1994. In that meeting the appellant was not held to be eligible > for promotion, but his juniors were selected and promoted to the rank of > Superintending Engineer. Hence the appellant filed a Writ Petition before > the Gauhati High Court which was dismissed and his appeal before the > Division Bench also failed. Aggrieved, this appeal has been filed by > special leave before this Court. 5. The stand of the respondent was that > according to para 6.3(ii) of the guidelines for promotion of departmental > candidates which was issued by the Government of India, Ministry of Public > Grievances and Pension, vide Office Memorandum dated 10.4.1989, for > promotion to all posts which are in the pay scale of Rs. 3700-5000/- and > above, the bench mark grade should be 'very good' for the last five years > before the D.P.C. In other words, only those candidates who had 'very > good' entries in their Annual Confidential Reports (ACRs) for the last > five years would be considered for promotion. The post of Superintending > Engineer carries the pay scale of Rs. 3700- 5000/- and since the appellant > did not have 'very good' entry but only 'good' entry for the year 1993-94, > he was not considered for promotion to the post of Superintending > Engineer. 6. The grievance of the appellant was that he was not > communicated the 'good' entry for the year 1993-94. He submitted that had > he been communicated that entry he would have had an opportunity of making > a representation for upgrading that entry from 'good' to 'very good', and > if that representation was allowed he would have also become eligible > for promotion. Hence he submits that the rules of natural justice have > been violated. 7. In reply, learned Counsel for the respondent submitted > that a 'good' entry is not an adverse entry and it is only an adverse > entry which has to be communicated to an employee. Hence he submitted that > there was no illegality in not communicating the 'good' entry to the > appellant. 8. Learned Counsel for the respondent relied on a decision of > this Court in Vijay Kumar v. State of Maharashtra and Ors. 1988 (Supp) SCC > 674 in which it was held that an un-communicated adverse report should > not form the foundation to deny the benefits to a government servant when > similar benefits are extended to his juniors. He also relied upon a > decision of this Court in State of Gujarat and Anr. v. Suryakant Chunilal > Shah 1999 (1) SCC 529 in which it was held: Purpose of adverse entries > is primarily to forewarn the government servant to mend his ways and to > improve his performance. That is why, it is required to communicate the > adverse entries so that the government servant to whom the adverse entry > is given, may have either opportunity to explain his conduct so as to > show that the adverse entry was wholly uncalled for, or to silently > brood over the matter and on being convinced that his previous conduct > justified such an entry, to improve his performance. On the strength > of the above decisions learned Counsel for the respondent submitted that > only an adverse entry needs to be communicated to an employee. 9. We do > not agree. In our opinion every entry must be communicated to the employee > concerned, so that he may have an opportunity of making a representation > against it if he is aggrieved. 10. In the present case the bench mark > (i.e. the essential requirement) laid down by the authorities for > promotion to the post of Superintending Engineer was that the candidate > should have 'very good' entry for the last five years. Thus in this > situation the 'good' entry in fact is an adverse entry because it > eliminates the candidate from being considered for promotion. Thus, > nomenclature is not relevant, it is the effect which the entry is having > which determines whether it is an adverse entry or not. It is thus the > rigours of the entry which is important, not the phraseology. The grant of > a `good' entry is of no satisfaction to the incumbent if it in fact makes > him ineligible for promotion or has an adverse effect on his chances. > 11. Hence, in our opinion, the 'good' entry should have been communicated > to the appellant so as to enable him to make a representation praying that > the said entry for the year 1993-94 should be upgraded from 'good' to > 'very good'. Of course, after considering such a representation it was > open to the authority concerned to reject the representation and confirm > the 'good' entry (though of course in a fair manner), but at least an > opportunity of making such a representation should have been given to the > appellant, and that would only have been possible had the appellant been > communicated the 'good' entry, which was not done in this case. Hence, we > are of the opinion that the non-communication of the 'good' entry was > arbitrary and hence illegal, and the decisions relied upon by the learned > Counsel for the respondent are distinguishable. 12. Learned Counsel for > the respondent submitted that under the Office Memorandum 21011/4/87 > [Estt.'A'] issued by the Ministry of Personnel/Public Grievance and > Pensions dated 10/11.09.1987, only an adverse entry is to be communicated > to the concerned employee. It is well settled that no rule or government > instruction can violate Article 14 or any other provision of the > Constitution, as the Constitution is the highest law of the land. The > aforesaid Office Memorandum, if it is interpreted to mean that only > adverse entries are to be communicated to the concerned employee and not > other entries, would in our opinion become arbitrary and hence illegal > being violative of Article 14. All similar Rules/Government Orders/Office > Memoranda, in respect of all services under the State, whether civil, > judicial, police, or other service (except the military), will hence also > be illegal and are therefore liable to be ignored. 13. It has been held > in Maneka Gandhi v. Union of India and Anr. that arbitrariness violates > Article 14 of the Constitution. In our opinion, the non-communication of > an entry in the A.C.R. of a public servant is arbitrary because it > deprives the concerned employee from making a representation against it > and praying for its up-gradation. In our opinion, every entry in the > Annual Confidential Report of every employee under the State, whether he > is in civil, judicial, police or other service (except the military) must > be communicated to him, so as to enable him to make a representation > against it, because non-communication deprives the employee of the > opportunity of making a representation against it which may affect his > chances of being promoted (or get some other benefits). Moreover, the > object of writing the confidential report and making entries in them is to > give an opportunity to a public servant to improve his performance, vide > State of U.P. v. Yamuna Shankar Misra . Hence such non-communication is, > in our opinion, arbitrary and hence violative of Article 14 of the > Constitution. 14. 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. 15. In most services there > is a gradation of entries, which is usually as follows: (i) > Outstanding (ii) Very Good (iii) Good (iv) Average (v) > Fair (vi) Poor A person getting any of the entries at items (ii) to > (vi) should be communicated the entry so that he has an opportunity of > making a representation praying for its upgradation, and such a > representation must be decided fairly and within a reasonable period by > the concerned authority. 16. If we hold that only `poor' entry is to be > communicated, the consequences may be that persons getting `fair', > `average', `good' or `very good' entries will not be able to represent for > its upgradation, and this may subsequently adversely affect their chances > of promotion (or get some other benefit). 17. 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. 18. For example, if the bench mark > 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. 19. 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 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 (supra) that > arbitrariness violates Article 14 of the Constitution. 20. Thus it is not > only when there is a bench mark but in all cases that an entry (whether it > is poor, fair, average, good or very good) must be communicated to a > public servant, otherwise there is violation of the principle of fairness, > which is the soul of natural justice. Even an outstanding entry should be > communicated since that would boost the morale of the employee and make > him work harder. 21. Learned Counsel for the respondent has relied on the > decision of this Court in U.P. Jal Nigam v. Prabhat Chandra Jain . We > have perused the said decision, which is cryptic and does not go into > details. Moreover it has not noticed the Constitution Bench decision of > this Court in Maneka Gandhi v. Union of India (supra) which has held that > all State action must be non-arbitrary, otherwise Article 14 of the > Constitution will be violated. In our opinion the decision in U.P. Jal > Nigam (supra) cannot be said to have laid down any legal principle that > entries need not be communicated. As observed in Bharat Petroleum > Corporation Ltd. v. N.R. Vairamani AIR 2004 SC 4778 (vide para 9): > Observations of Courts are neither to be read as Euclid's Theorems nor > as provisions of the statute, and that too, taken out of their context. > 22. In U.P. Jal Nigam's case (supra) there is only a stray observation > "if the graded entry is of going a step down, like falling from 'very > good' to 'good' that may not ordinarily be an adverse entry since both are > a positive grading". There is no discussion about the question whether > such 'good' grading can also have serious adverse consequences as it may > virtually eliminate the chances of promotion of the incumbent if there is > a benchmark requiring 'very good' entry. And even when there is no > benchmark, such downgrading can have serious adverse effect on an > incumbent's chances of promotion where comparative merit of several > candidates is considered. 23. Learned Counsel for the respondent also > relied upon the decision of this Court in Union of India and Anr. v. S.K. > Goel and Ors. and on the strength of the same submitted that only an > adverse entry need be communicated to the incumbent. The aforesaid > decision is a 2- Judge Bench decision and hence cannot prevail over the > 7-Judge Constitution Bench decision of this Court in Maneka Gandhi v. > Union of India (supra) in which it has been held that arbitrariness > violates Article 14 of the Constitution. Since the aforesaid decision in > Union of India v. S.K. Goel (supra) has not considered the aforesaid > Constitution Bench decision in Maneka Gandhi's case (supra), it cannot be > said to have laid down the correct law. Moreover, this decision also > cannot be treated as a Euclid's formula since there is no detailed > discussion in it about the adverse consequences of non-communication of > the entry, and the consequential denial of making a representation against > it. 24. It may be mentioned that communication of entries and giving > opportunity to represent against them is particularly important on higher > posts which are in a pyramidical structure where often the principle of > elimination is followed in selection for promotion, and even a single > entry can destroy the career of an officer which has otherwise been > outstanding throughout. This often results in grave injustice and > heart-burning, and may shatter the morale of many good officers who are > superseded due to this arbitrariness, while officers of inferior merit may > be promoted. 25. In the present case, the action of the respondents in > not communicating the 'good' entry for the year 1993-94 to the appellant > is in our opinion arbitrary and violative of natural justice, because in > substance the `good' entry operates as an adverse entry (for the reason > given above). 26. What is natural justice? The rules of natural justice > are not codified nor are they unvarying in all situations, rather they are > flexible. They may, however, be summarized in one word : fairness. In > other words, what they require is fairness by the authority concerned. Of > course, what is fair would depend on the situation and the context. 27. > Lord Esher M.R. in Voinet v. Barrett (1885) 55 L.J. QB 39, 39 observed: > "Natural justice is the natural sense of what is right and wrong." 28. > In our opinion, our natural sense of what is right and wrong tells us that > it was wrong on the part of the respondent in not communicating the 'good' > entry to the appellant since he was thereby deprived of the right to make > a representation against it, which if allowed would have entitled him to > be considered for promotion to the post of Superintending Engineer. One > may not have the right to promotion, but one has the right to be > considered for promotion, and this right of the appellant was violated in > the present case. 29. A large number of decisions of this Court have > discussed the principles of natural justice and it is not necessary for us > to go into all of them here. However, we may consider a few. 30. Thus, > in A.K. Kraipak and Ors. v. Union of India and Ors. , a Constitution Bench > of this Court held: The concept of natural justice has undergone a > great deal of change in recent years. In the past it was thought that it > included just two rules, namely (1) no one shall be a judge in his own > cause (Nemo debet csse judex propria causa), and (2) no decision shall > be given against a party without affording him a reasonable hearing > (audi alteram partem). Very soon thereafter a third rule was envisaged > and that is that quasi-judicial enquiries must be held in good faith, > without bias and not arbitrarily or unreasonably. But in the course of > years many more subsidiary rules came to be added to the rules of > natural justice. (emphasis supplied) 31. The aforesaid decision was > followed by this Court in K.I. Shephard and Ors. v. Union of India and > Ors. . It was held in this decision that even administrative acts have to > be in accordance with natural justice if they have civil consequences. It > was also held that natural justice has various facets and acting fairly is > one of them. 32. In Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar > Pant AIR 2001 SC 24, this Court held (vide para 2): The doctrine > (natural justice) is now termed as a synonym of fairness in the concept > of justice and stands as the most accepted methodology of a governmental > action. (emphasis supplied) 33. In the same decision it was also > held following the decision of Tucker, LJ in Russell v. Duke of Norfolk > (1949) 1 All ER 109: The requirement of natural justice must depend on > the circumstances of the case, the nature of the enquiry, the rules > under which the tribunal is acting, the subject- matter that is being > dealt with, and so forth. 34. In Union of India etc. v. Tulsiram > Patel etc. a Constitution Bench of this Court referred to with approval > the following observations of Ormond, L.J. in Norwest Holst Ltd. v. > Secretary of State for Trade (1978) 1, Ch. 201: The House of Lords and > this Court have repeatedly emphasized that the ordinary principles of > natural justice must be kept flexible and must be adapted to the > circumstances prevailing in any particular case. (emphasis > supplied) Thus, it is well settled that the rules of natural justice are > flexible. The question to be asked in every case to determine whether > the rules of natural justice have been violated is : have the authorities > acted fairly? 35. In Swadesh Cotton Mills etc. v. Union of India etc. , > this Court following the decision in Mohinder Singh Gill and Anr. v. The > Chief Election Commissioner and Ors. held that the soul of the rule > (natural justice) is fair play in action. 36. In our opinion, fair play > required that the respondent should have communicated the 'good' entry of > 1993-94 to the appellant so that he could have an opportunity of making a > representation praying for upgrading the same so that he could be eligible > for promotion. Non-communication of the said entry, in our opinion, was > hence unfair on the part of the respondent and hence violative of natural > justice. 37. 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 v. Union of India . In Maneka Gandhi v. Union > of India (supra) (vide paragraphs 56 to 61) it was held that natural > justice is part of Article 14 of the Constitution. 38. 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. 39. 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 (whether poor, fair, average, > good or very good) 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 so that > he can make a representation for its upgradation. 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. > 40. 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 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. 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 v. Major Bahadur > Singh . But they will apply to employees of statutory authorities, > public sector corporations and other instrumentalities of the State (in > addition to Government servants). 42. In Canara Bank v. V.K. Awasthy , > this Court held that the concept of natural justice has undergone a great > deal of change in recent years. As observed in para 8 of the said > judgment: Natural justice is another name for common-sense justice. > Rules of natural justice are not codified canons. But they are > principles ingrained into the conscience of man. Natural justice is the > administration of justice in a common-sense liberal way. Justice is > based substantially on natural ideals and human values. 43. In para 12 of > the said judgment it was observed: What is meant by the term > "principles of natural justice" is not easy to determine. Lord Summer > (then Hamilton, L.J.) in R. v. Local Govt. Board (1914) 1 KB 160 : 83 > LJKB 86 described the phrase as sadly lacking in precision. In General > Council of Medical Education & Registration of U.K. v. Spackman (1943) > AC 627 : (1943) 2 All ER 337, Lord Wright observed that it was not > desirable to attempt "to force it into any Procrustean bed". 44. In > State of Maharashtra v. Public Concern for Governance Trust and Ors. , it > was observed (vide para 39): In our opinion, when an authority takes a > decision which may have civil consequences and affects the rights of a > person, the principles of natural justice would at once come into play. > 45. 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. > 46. In view of the above, we are of the opinion that both the learned > Single Judge as well as the learned Division Bench erred in law. Hence, we > set aside the judgment of the Learned Single Judge as well as the impugned > judgment of the learned Division Bench. 47. We are informed that the > appellant has already retired from service. However, if his representation > for upgradation of the `good' entry is allowed, he may benefit in his > pension and get some arrears. Hence we direct that the 'good' entry of > 1993-94 be communicated to the appellant forthwith and he should be > permitted to make a representation against the same praying for its > upgradation. If the upgradation is allowed, the appellant should be > considered forthwith for promotion as Superintending Engineer > retrospectively and if he is promoted he will get the benefit of higher > pension and the balance of arrears of pay along with 8% per annum > interest. 48. We, therefore, direct that the 'good' entry be communicated > to the appellant within a period of two months from the date of receipt of > the copy of this judgment. On being communicated, the appellant may make > the representation, if he so chooses, against the said entry within two > months thereafter and the said representation will be decided within two > months thereafter. If his entry is upgraded the appellant shall be > considered for promotion retrospectively by the Departmental Promotion > Committee (DPC) within three months thereafter and if the appellant gets > selected for promotion retrospectively, he should be given higher pension > with arrears of pay and interest @ 8% per annum till the date of payment. > 49. With these observations this appeal is allowed. No costs. ____ > > > To unsubscribe send a message to accessindia-requ...@accessindia.org.inwith > the subject unsubscribe. > > To change your subscription to digest mode or make any other changes, > please visit the list home page at > http://accessindia.org.in/mailman/listinfo/accessindia_accessindia.org.in > -- Warm regards, Subhash Chandra Vashishth Mobile : +91-11-9811125521 Please don't print this e-mail unless you really need to. Consider Environment. To unsubscribe send a message to accessindia-requ...@accessindia.org.in with the subject unsubscribe. 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