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
[email protected] 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
