Awdesh Kumar Pandey vs Union of India

This Letters Patent Appeal has been filed against the order dated 20.4.2006, passed by the learned single Judge in W.P.(S) Case No. 5819 of 2005, dismissing the writ petition holding that no relief can be granted to the petitioner-appellant in respect of his grievance of not being considered for promotion. The appellant-writ petitioner, A.K. Pandey, was appointed as Constable on 29.12.1968 and was promoted up to the rank of Deputy Commandant. The case of the petitioner-appellant was considered by the Departmental Promotion Committee (D.P.C.) on 10.4.2003, 26.4.2004 and 24.3.2005 for the vacancy years 2003-04, 2004-05 and 2005-06, respectively. The petitioner-appellant was graded as unfit for promotion to the rank of Second-in-Command as he could not achieve the prescribed benchmark grading which is "Very Good".

Stating that he was not considered for promotion to the post of Second-in-Command and his juniors were considered and promoted, the appellant filed the writ petition being W.P.(S) No. 5819 of 2005 for providing promotional benefits along with consequential benefits with effect from 5.11.2003 and to promote him to subsequent post. The learned single Judge has dismissed the writ petition filed by the writ petitioner-appellant, bearing W.P.(S) No. 5819 of 2005, holding that no relief can be granted to the petitioner-appellant. However, the learned single Judge has observed that the order shall not stand in the way of the respondents to consider the petitioner-appellant for promotion to the higher post, if they consider in near future.

Learned senior counsel Mr. Md. Sohail Anwar, appearing for the appellant has submitted that the appellant''s claim for promotion was genuine and he has not been fairly considered by the respondents and the respondents have acted arbitrarily. Placing reliance upon the judgment passed in the case of Dev Dutt Vs. Union of India (UOI) and Others, and the judgment passed in the case of Abhijit Ghosh Dastidar Vs. Union of India (UOI) and Others, , it has been submitted by the learned senior counsel that had the appellant been communicated about the grading/down-grading of the appellant, he would have had an opportunity to make the representation and also to improve his performance. The non-communication of grading/down-grading of the appellant, and thereafter, not considering the case of the appellant for promotion, is in violation of the principles of natural justice, and therefore, prayed for allowing the Letters Patent Appeal.

We have heard the learned counsel for the Central Government, Mr. Faiz-ur-Rahman appearing on behalf of the Union of India who has drawn our attention to Annexure-B filed along with the counter-affidavit, and has submitted that as per the instructions issued by the Director General of Police, C.R.P.F., the adverse remarks always be communicated to the concerned officer but grading irrespective whether it is high or low, is not communicated and the appellant has not challenged the said instruction. Learned counsel has further submitted that since the appellant was found unfit for promotion continuously for three years, he was not considered for promotion, and therefore, there is no arbitrariness in declining the promotion and since he has not achieved the benchmark as "Very Good" to be considered for promotion, the learned single Judge has rightly dismissed the writ petition filed by the writ petitioner-appellant. Learned counsel for the respondent-Union of India has further contended that since the appellant has already retired in September, 2006, any further direction to reconsider the matter afresh would only be a futile exercise.

Continuously for three vacancy years i.e. 2003-04, 2004-05 and 2005-06, the appellant could not achieve the benchmark as "Very Good", and therefore, he was not considered for promotion by the Departmental Promotion Committee in their meeting convened on 10.4.2003, 26.4.2004 and 24.3.2005, respectively, for the aforesaid three consecutive vacancy years.

The grievance of the petitioner-appellant is that he was not communicated the grading entries for the previous years and had he been communicated the grading, he would have had an opportunity to make the representation or he would have improved his performance. In this regard, the learned senior counsel for the appellant has relied upon the judgment reported in Dev Dutt Vs. Union of India (UOI) and Others, , where the Hon''ble Supreme Court held as under:

"9. In the present case the benchmark (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.

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 1993-1994 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.

Learned counsel for the respondent submitted that under Office Memorandum No. 21011/4/87 (Estt.''A'') issued by the Ministry of Personnel/Public Grievance and Pensions dated 10/11-9-1987, only an adverse entry is to be communicated to the employee concerned. 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 employee concerned 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.

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 benchmark or not. Even if there is no benchmark, non-communication of any 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.

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.

Thus, it is not only when there is a benchmark 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."

The above judgment was also reiterated in the subsequent judgment by the Hon''ble Supreme Court reported in Abhijit Ghosh Dastidar Vs. Union of India (UOI) and Others, , which is quoted as under:

"8. Coming to the second aspect, that though the benchmark "very good" is required for being considered for promotion, admittedly the entry of "good" was not communicated to the appellant. The entry of "good" should have been communicated to him as he was having "very good" in the previous year. In those circumstances, 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 armed forces), it has civil consequences because it may affect his chances of promotion or getting other benefits. Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution. The same view has been reiterated in the abovereferred decision (Dev Dutt case, SCC p.738, para 41) relied on by the appellant. Therefore, the entries "good" if at all granted to the appellant, the same should not have been taken into consideration for being considered for promotion to the higher grade. The respondent has no case that the appellant had ever been informed of the nature of the grading given to him."

On behalf of the respondents, our attention was drawn to Annexure-B filed alongwith the counter affidavit, to submit that as per the administrative instruction of the Directorate General, C.R.P.F. Dated 3.7.2004, adverse remarks are to be communicated to the concerned officer but the grading irrespective whether it is high or low, is not communicated and as per the said administrative instruction grading was not required to be communicated.

However, the learned senior counsel appearing for the appellant has submitted that the said executive instruction of the Directorate General, C.R.P.F. may not be sustainable in the light of the judgment of the Hon''ble Supreme Court.

In view of the above judgments of the Hon''ble Supreme Court, we are of the view that the grading of the appellant for the relevant period ought to have been communicated to him and due to the non- communication of the grading, the appellant could not make representation, and therefore, there was violation of the principles of natural justice. In view of the ratio of the judgment by the Hon''ble Supreme Court, we are of the view that the case of the appellant is to be considered afresh. Therefore, the order of the Director General of Police, C.R.P.F. Dated 9.9.2005 (Annexure-7) is, hereby, quashed.

We direct the respondents to communicate to the appellant of the grading for the relevant period prior to 2003-04, 2004-05 and 2005-06 and to afford sufficient opportunity to the appellant to make the representation and consider the matter afresh in accordance with law as expeditiously as possible. With the aforesaid observation and direction, this Letters Patent Appeal stands disposed of.