Dr Dhananjaya Y Chandrachud, J
1 Leave granted.
2 The dispute in the present case arises from the appellant’s claim for
promotion from Scale III to Scale IV in the services of the respondents.
The year of promotion is 2014-2015.
3 The grievance of the appellant is that the entries in his Annual
Performance Appraisal Report1 for 2010-11 and 2011-12 were not
disclosed, as a result of which he was unable to submit a representation at
the material time. The appellant had the following gradings in the APARs:
(i) 2010-2011 “C”
(iv) 2013-2014 “A”
1 “APAR”
4 Relying on the two-judge Bench decision of this Court in Dev Dutt v
Union of India2 and the subsequent decision of the three-judge Bench in
Sukhdev Singh v Union of India3, the appellant contended that the failure
to communicate the entries for 2010-11 and 2011-12 is contrary to the law
laid down by this Court. Moreover, it has been submitted that on 14 May
2009 and 13 April 2010, the Union of India in the Ministry of Personnel,
Public Grievances and Pensions (Department of Personnel and Training)
had issued directions for implementation of the decision in Dev Dutt
(supra). Thereafter, on 19 October 2012, the Union of India in the Ministry
of Finance (Department of Financial Services) had drawn the attention of
public sector insurance companies to the earlier Office Memorandum
dated 14 May 2009 seeking immediate compliance. In this background, it
has been submitted that the High Court of Judicature at Allahabad, which
was moved by the appellant in proceedings under Article 226, was in error
in coming to the conclusion that absent an adverse entry or an entry below
the benchmark, the failure to communicate did not result in an actionable
grievance. The High Court dismissed the writ petition by its judgment
dated 6 October 2016 as well as the review petition by its judgment dated
17 January 2017. The present proceedings were instituted assailing the
judgments of the High Court.
5 In the counter affidavit filed on behalf of the respondent, it has been
stated that following a circular dated 18 March 2014, all public sector
2 (2008) 8 SCC 725 3 (2013) 9 SCC 566
insurance companies have disclosed APARs since appraisal year 2013-14.
It has been submitted that in consequence, there was no necessity to
disclose the APARs to the appellant for the relevant years (2010-11 and
2011-12).
6 Adopting the line of submission which has been set out in the counter
affidavit, Mr P P Malhotra, learned senior counsel appearing on behalf of
the respondents, submitted that in terms of the Promotion Policy for
Officers – 20064, promotions from Scale III to Scale IV are based on (i) a
written test; (ii) the work record; and (iii) seniority. It was submitted that in
the present case the appellant failed to fulfill the cut-off for promotion of
68.98 marks, as disclosed to him on 9 September 2014.
7 Dr. Manish Singhvi, learned senior counsel appearing on behalf of the
appellant, submitted that the defence which has been set out on behalf of
the respondent has no substance since, following the law laid down by this
Court in Dev Dutt (supra), all entries in the APARs are required to be
communicated. Non-communication of the entries, in the present case, is
a matter of prejudice since the communication dated 9 September 2014
indicates that, in appraising his work record, the appellant was given 40.15
marks out of a maximum of 45. This indicates that the uncommunicated
entries for 2010-11 and 2011-12 have weighed against him.
8 While assessing the rival submissions, we must, at the outset, note
that the law laid down by the two-judge Bench of this court in Dev Dutt
(supra) has been reaffirmed by three judges in Sukhdev Singh (supra).
4 Annexure P-1
In Sukhdev Singh (supra), this Court held:
“8. In our opinion, the view taken in Dev Dutt [Dev
Dutt v. Union of India, (2008) 8 SCC 725 : (2008) 2 SCC
(L&S) 771] that every entry in ACR of a public servant must
be communicated to him/her within a reasonable period is
legally sound and helps in achieving threefold objectives.
First, the communication of every entry in the ACR to a public
servant helps him/her to work harder and achieve more that
helps him in improving his work and give better results.
Second and equally important, on being made aware of the
entry in the ACR, the public servant may feel dissatisfied with
the same. Communication of the entry enables him/her to
make representation for upgradation of the remarks entered
in the ACR. Third, communication of every entry in the ACR
brings transparency in recording the remarks relating to a
public servant and the system becomes more conforming to
the principles of natural justice. We, accordingly, hold that
every entry in ACR—poor, fair, average, good or very good—
must be communicated to him/her within a reasonable
period.”
9 The Union of India had also issued Office Memoranda on 14 May
2009 and 13 April 2010 seeking compliance by all Ministries and
Departments. Moreover, on 19 October 2012, a specific communication
was also addressed to public sector insurance companies. Even
independent of these communications, the respondent was duty bound to
comply with the law laid down by this Court. They cannot urge that the
decision having been implemented from 2013-14, it has no application for
the earlier years. The judgment of this Court is declaratory in nature.
10 Learned senior counsel appearing on behalf of the respondent, while
placing reliance on the disclosure made to the appellant on 9 September
2014, submitted that even if a communication were to be made, no
difference would result in the ultimate outcome. Mr. Malhotra urged that
the promotion for 2014-15 depended on the APARs for 2011-12, 2012-13
and 2013-14.
11 The relevant part of the communication dated 9 September 2014
provides thus:
“1. The marks secured by you in the Promotion Exercise 2014-15 is as
under:
Normal Channel Fast Track
Written Test 20.1 26.81
Work Record (WR) 40.15 35.69
Seniority 4.2 N/A
Interview N/A 16
Total 64.45 78.5
2. The cut-off marks for promotion (Scale III to IV) is as under:
Normal Channel 68.98
Fast Track 84.14”
12 The above communication indicates that for the normal channel, with
which we are concerned, the appellant secured 64.45 marks against the
cut-off of 68.98 for promotion from Scale III to Scale IV.
13 Admittedly, for one of the years under consideration (2011-12) for the
promotional exercise for 2014-15, the appellant was graded a “B”, while for
the subsequent two years, he was graded an “A”. Consequently, the fact
that the appellant was given a lower grading for 2011-12 would materially
affect whether or not he should be promoted from Scale III to Scale IV for
the year in question. The non-communication of the entries is, therefore, a
matter in respect of which a legitimate grievance can be made by the
appellant, particularly having regard to the position in law laid down in Dev
Dutt (supra) and Sukhdev Singh (supra).
14 The next question to consider is the substantive relief which should
be granted to the appellant. The promotional exercise of 2014-15 has
been completed. The appellant has since been promoted in 2018. The
ends of justice would be made if a direction is issued to the respondent to
consider the representation, if any, that may be submitted by the appellant
in respect of the grading which was assigned to him for the relevant years
which were taken into consideration during the promotional exercise for
2014-15.
15 We issue the following directions:
(i) Within a period of one month from the date of receipt of a certified
copy of this order, the respondent shall communicate to the appellant
the uncommunicated entries in the APARs for the years which were
taken into account for the promotional exercise of 2014-15;
(ii) Within a period of two months from the date of receipt of the above, it
would be open to the appellant to submit his objections and
representation to the respondent;
(iii) The representation shall be considered within a period of three
months from the date of receipt of the representation;
(iv) Thereafter, based on the result of the decision, the competent
authority shall take a decision on whether any modification in the
decision for promotion from Scale III to Scale IV for 2014-15 in
respect of the appellant is warranted; and
(v) In order to ensure that this exercise is carried out fairly, we direct that
the competent authority shall ensure that the representation that is
submitted by the appellant is placed before an authority at a
sufficiently senior level to obviate any bias or injustice.
16 The impugned judgments and orders of the High Court are set aside.
The appeals are allowed in the above terms. There shall be no order as to
costs.
[Dr Dhananjaya Y Chandrachud]
[Indira Banerjee]
New Delhi; July 10, 2019
Civil Appeal Nos 5340-5341 of 2019
(Arising out of SLP(C) Nos 33462-33463 of 2018)
Pankaj Prakash .... Appellant(s)
Versus
United India Insurance Co Ltd & Anr ....Respondent(s)
(WITH I.R. IA No.175508/2018-PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES)
WITH Diary No(s). 42691/2018 (XI) (WITH I.R. and IA No.70260/2019-CONDONATION OF DELAY IN FILING and IA No.70266/2019-CONDONATION OF DELAY IN REFILING)
Date : 10-07-2019 These matters were called on for hearing today.
CORAM :
For Petitioner(s) Dr. Manish Singhvi, Sr. Adv.
Mr. Romil Pathak, Adv.
Mr. Shailja Nanda Mishra, Adv.
Mr. Ashwani Bhardwaj, AOR
For Respondent(s) Mr. P.P. Malhotra, Sr. Adv.
Mr. Vineet Malhotra, Adv.
Mr. Mohit Paul, AOR
Mr. Yasir Rauf, Adv.
Mr. Shubhendu Kaushik, Adv.
Ms. Sunaina Paul, Adv.
UPON hearing the counsel the Court made the following
O R D E R
Civil Appeal Nos 5340-5341 of 2019
(Arising out of SLP(C) Nos 33462-33463 of 2018)
Leave granted.
The appeals are allowed in terms of the signed
reportable judgment. There shall be no order as to costs.
Pending application, if any, stands disposed of.
Diary No(s). 42691/2018
Delay condoned.
Issue notice, returnable in twelve weeks.
Dasti, in addition, is permitted.
Counter affidavit be filed in the meantime.
(Signed reportable judgment is placed on the file)