Iqbal Ahmad vs Union of India

,,,,,

Mr. Ali Mohammad Magrey, J. - This petition by a member of the Central Reserve Police Force (for short, CRPF) raises a short grievance.",,,,,

The Departmental Promotion Committee (DPC) in its meeting held on 06.04.2009 for empanelment of Deputy Commandants working in the,,,,,

Force for promotion as Second-in-Command during the vacancy period 2009-2010 graded the petitioner as 'unfit'. Consequently, the petitioner's",,,,,

name was not brought on the panel which was circulated in terms of Wireless Signals dated 15.06.2009 and 30.06.2009. Resultantly, the officers",,,,,

who figured junior to him in the seniority of Deputy Commandants were promoted. The petitioner was later promoted in July 2011 as Second-in-,,,,,

Command. He has filed this writ petition seeking writ of Mandamus to command the respondents to decide his pending representation in light of,,,,,

the law laid down by the Supreme Court, to promote him retrospectively as Second-in-Command with effect from 15.06.2009 and to release all",,,,,

consequential service benefits in his favour.,,,,,

The facts are not in dispute. The CRPF convened its DPC on 06.04.2009 to consider the cases of eligible Deputy Commandants for promotion,,,,,

to the rank of Second-in-Command. In all, 106 vacancies during the vacancy year 2009-2010 were available. The zone of consideration for these",,,,,

106 vacancies, as reflected in the records, was 162 Officers. However, there were only 143 eligible Deputy Commandants available who were",,,,,

accorded consideration. The DPC recommended empanelment of 106 Deputy Commandants. These 106 empanelled Officers were eventually,,,,,

promoted as Second-in-Command and information thereabout was transmitted and circulated vide IGP Personnel, Directorate General, CRPF's",,,,,

Signal Nos. P-VII-6/2009-10-Pers-I, dated 15.06.2009 and No. P-VII-6/2009-Pers, dated 30.06.2009.",,,,,

The petitioner was also holding the rank of Deputy Commandant. His name, however, did not figure in the aforesaid Signals dated 15.06.2009",,,,,

or 30.06.2009. He made representation dated 16.06.2009 to the Directorate General, CRPF, New Delhi, for reconsideration of his case for such",,,,,

promotion or, in the alternative, to apprise him of the reasons for his non-inclusion in the promotion list.",,,,,

In response to his aforesaid representation, the DIGP (Pers.), Directorate General, CRPF, New Delhi, by communication no. P.VII-5/2009.",,,,,

Pers. I, dated 02.07.2009, routed to the petitioner through IGP, Tripura Sector, CRPF, informed him that he was considered for promotion to the",,,,,

rank of Second-in-Command by the DPC convened on 06.04.2009 but, as he could not achieve the prescribed benchmark grading, the DPC",,,,,

graded him unfit and he was, as such, not brought on the panel.",,,,,

On receipt of the above information, the petitioner made a representation dated 03.09.2009 seeking copies of the ACRs in which he had failed",,,,,

to achieve the prescribed benchmark to enable him to make a representation, citing therein, inter alia, the decision of the Supreme Court in Dev",,,,,

Dutt v. Union of India and the relevant OMs issued by the Government of India, Department of Personnel and Training, including OM No.",,,,,

21011/1/2005-Estt (A) (Pt-II), dated 14.05.2009. In response, the petitioner received communication No. P.VII.5/2009-Pers from DIG (Pers),",,,,,

inter alia, informing him that as per the instructions which existed at the material time only adverse remarks were to be communicated and grading",,,,,

was not to be communicated. He was also informed that the instructions issued by DoPT vide OM dated 14.05.2009 were applicable only,,,,,

prospectively with effect from 01.04.2009 and, therefore, his request could not be acceded to. The petitioner was also informed that his",,,,,

representation had been rejected being devoid of merit.,,,,,

The petitioner made yet another representation dated 20.07.2010, stating therein, among other things, that since the ACR(s) had adversely",,,,,

affected his career, he had a right to have copies thereof to enable him to make a representation. This was followed by another representation",,,,,

dated 05.08.2010. In response, the petitioner received communication dated 01.12.2010 from DIGP (Pers), conveying to him, among other",,,,,

things, as under:",,,,,

a) The benchmark prescribed for promotion from Dy. Comdt to the rank of Second-in-Command is 'Very Good'. In the DPC held on 6-4-09,",,,,,

ACRs for the last five years i.e. from 2003-04 to 2007-08 were considered by the Committee. As per guidelines, the DPC shall check the",,,,,

records of officers under consideration w.r.t. 'bench mark' and grade them FIT or UNFIT only. In the instant case, the officer could not achieve",,,,,

the prescribed bench mark and the DPC has rightly graded him UNFIT,",,,,,

b) The APAR (Annual Performance Appraisal Reports) system introduced vide GOI, DOP&T OM dated 14-05-2009 is effective from 1-4-09",,,,,

only (for the reporting period 2008-09 onwards) and accordingly copy of APARs for the year 2008-09 onwards is being provided to the officers.,,,,,

Prior to this system, it was mandatory to communicate the adverse remarks only and not the ACR grading. Now DOP&T vide their OM dated",,,,,

13.04.2010 have issued instructions to the effect that the ACRs for the period prior 2008-09, which would be reckonable for assessment in future",,,,,

DPCs and contain final grading which are below the bench mark, copy of such ACRs to be provided to concerned employee for making",,,,,

representation. Accordingly, directions have already been issued to Sector IsGP to take further course of action in this regard for the purpose of",,,,,

conduct of DPC for the vacancy year 2011-12. On receipt of copy of such ACR, if any, from Sector Officer, the officer is at liberty to make",,,,,

representation.""",,,,,

On receipt of the above communication dated 01.12.2010, the petitioner made a detailed representation through proper channel, styling it as",,,,,

'Memorandum on Supersession' to His Excellency the President of India with the prayers that:,,,,,

(i) A review DPC be constituted to consider promotion of the petitioner in the rank of Second-in-Command with effect from 15.06.2009 (the",,,,,

date of his supersession) by ignoring those un-communicated remarks which have adverse bearing on his career progression;,,,,,

(ii) If the petitioner is found fit for promotion w.e.f. 15.06.2009 by the review DPC, then the arrears of pay and allowances (less drawn by him) be",,,,,

paid to him.""",,,,,

In the aforesaid representation, the petitioner cited and quoted the relevant OMs and the law laid down by the Supreme Court in its various",,,,,

judgments on the subject holding the field. According to the petitioner, the aforesaid representation has not been decided. He has, therefore,",,,,,

approached the Court through the medium of this writ petition for the reliefs mentioned in the very first paragraph of this judgment.,,,,,

Respondents have filed their reply, contesting the claim of the petitioner. The reply contains the reiteration of what was communicated to the",,,,,

petitioner in response to his representations, narrated above. However, in paragraph 9 of the reply-affidavit sworn on 01.01.2015 by Mr.",,,,,

Sandeep Datta, DIGP, GC, CRPF, Rambagh, Srinagar, the following statement is made:",,,,,

In reply Para 9(d & e), it is submitted that the averment made in this para are denied. In so far as judgment dated 12/05/2008 in Civil Appeal",,,,,

No. 763 of 2002 (Dev Dutt v. Union of India) is concerned the DoP&T vide OM No. 21011/1/2010-Estt.A, dated 27/04/2010 had intimated",,,,,

that the Hon'ble Supreme Court in above Civil Appeal had held that the 'good' entry in the ACR of the appellant which had not been,,,,,

communicated to him and considered in a past DPC which found him unfit for promotion, would be communicated for representation and if up-",,,,,

gradation is allowed by the competent authority, he should be considered for promotion retrospectively by the DPC. When the petitions, in SLP",,,,,

(Civil) No. 15770/2009, now converted to Appeal Civil No. 2872 of 2010 (Union of India v. A.K. Goel & Ors) were called for hearing, the",,,,,

Supreme Court has taken note of the apparent conflict between the decisions of the Hon'ble Court in Dev Dutt case on one hand and the,,,,,

judgments of Supreme Court in Satya Narain Shukla v. UOI 2006(9) SCC 69 and K.M. Mishra v. Central Bank of India & Ors 2008 (9),,,,,

SCC 120 on the other hand and by their order dated 29/03/2010, the Hon'ble Court has referred these appeals to a larger bench. In the light of",,,,,

the order issued by Hon'ble Supreme Court in the above SLP (Civil) No. 15770/2009, the DoP&T vide OM ibid had advised that wherever",,,,,

petitions have been filed in courts to grant relief on the basis of the aforesaid decision of the Supreme Court in Dev Dutt case, the latest order of",,,,,

the Supreme Court in A.K. Goel case may be brought to the notice of the Court. The matter was heard by the Hon'ble Supreme Court on,,,,,

20/11/2013. The Ld. ASG submits that in Dev Dutt v. UOI & Ors, 2008 (8) SCC 725, the cut-off date for the applicability of the judgment has",,,,,

not been decided. She submits that this aspect needs to be decided by a larger bench. Upon hearing, the Hon'ble Supreme Court has ordered that",,,,,

they do not consider that the matter should be considered by a larger bench. The Hon'ble Court has ordered that the matter shall now be posted,,,,,

before the concerned Bench. The contention about cut-off date raised on behalf of UOI may be raised before the concerned Bench. From the,,,,,

above, it may be seen that the matter is still not clear and as such not applicable in the present case as argued by the learned counsel.""",,,,,

I heard learned counsel for the parties, perused the record and considered the matter. The learned counsel on both sides reiterated their stand",,,,,

taken in their respective pleadings.,,,,,

Learned counsel for the petitioner submitted that, admittedly, certain ACR(s) of the petitioner between the years 2003-04 to 2007-08 had",,,,,

been found to be not conforming to the benchmark ""Very Good"". Consequently, the DPC graded him unfit. Learned counsel submitted that by",,,,,

reason of that fact itself the ACR(s) of the petitioner which did not conform to the benchmark ""Very Good"" had an adverse implication on his",,,,,

promotional prospects inasmuch as he was graded unfit. Therefore, the ACR(s) in question for all practical purposes were treated as adverse",,,,,

against the interests of the petitioner. As such, the same required to be communicated to him at the appropriate time so as to enable him to make",,,,,

representation(s) against the same and seek up-gradation. Learned counsel submitted that it not only when an ACR is expressly termed as adverse,,,,,

that the same is required to be communicated to the officer, but all such ACR(s) as can be read against the officer reported upon have to be",,,,,

communicated to him. The learned counsel submitted that since such adverse ACRs were not communicated to the petitioner, the same could not",,,,,

have been taken into consideration by the DPC while determining his gradation. The learned counsel in this regard cited and relied upon two,,,,,

judgments of the Supreme Court in Dev Dutt v. Union of India, (2008) 8 SCC 725, and Abhijit Ghosh Dastidar v. Union of India, (2009)",,,,,

16 SCC 146.,,,,,

The stand taken by the respondents is that OM dated 14.05.2009 is effective only from 01.04.2009 and that copies of APARs for the yea r,,,,,

2008-09 onwards, are being provided to the officers. Prior to this system, it was mandatory to communicate the adverse remarks only and not the",,,,,

ACR grading. At the same time, it is stated that DoP&T vide OM dated 13.04.2010 has issued instructions to the effect that below benchmark",,,,,

ACRs for the period prior 2008-09, which would be reckonable for assessment in future DPCs, be provided to concerned officers for making",,,,,

representation. Learned counsel for the respondents, however, submitted that the instructions contained in this OM dated 13.04.2010 are",,,,,

applicable only with respect to the DPCs those would be convened after such date and that the system is not applicable to cases where DPCs,,,,,

have already been held.,,,,,

So far as the law laid down by the Supreme Court in Dev Dutt v. Union of India (supra) and Abhijit Ghosh Dastidar v. Union of India,,,,,

(supra) is concerned, the learned ASGI referred to and relied upon two decisions of the Supreme Court in Satya Narain Shukla v. Union of",,,,,

India, (2006) 9 SCC 69, and K.M. Mishra v. Central Bank of India, (2008) 9 SCC 120. He submitted that there seems to be a conflict in",,,,,

the judgments and, therefore, the law laid down in Dev Dutt v. Union of India (supra) and Abhijit Ghosh Dastidar v. Union of India (supra)",,,,,

may not be taken as the final word on the point.,,,,,

In Satya Narain Shukla v. Union of India (supra) referred to and relied upon by the learned ASGI, it was argued by the appellant before",,,,,

the Supreme Court that the remarks made in the ACR were not communicated to him and it was urged that the Court should direct the authorities,,,,,

to streamline the whole procedure so that even remarks like 'good' or 'very good' made in ACRs should be made compulsorily communicable to,,,,,

the officers concerned so that an officer may not lose his chance of empanelment at a subsequent point of his service. The Supreme Court in that,,,,,

regard, at para 30 of the judgment, laid down as under:",,,,,

...[I]n our view, it is not our function to issue such directions. It is for the Government to consider how to streamline the procedure for selection.",,,,,

We can only examine if the procedure for selection as adopted by the Government is unconstitutional or otherwise illegal or vitiated by arbitrariness,,,,,

and mala fides.""",,,,,

The above portion of the judgment was later relied upon by the Supreme Court in another case, viz. K.M. Mishra v. Central Bank of India",,,,,

(supra). However, as would be shown later on hereinafter in this judgment, a three-Judge Bench of the Supreme Court, in a subsequent decision in",,,,,

Sukhdev Singh v. Union of India, (2013) 9 SCC 566, overruled the above said decisions in Satya Narain Shukla v. Union of India (supra) and",,,,,

K.M. Mishra v. Central Bank of India (supra).,,,,,

However, as on the date the decision in Dev Dutt v. Union of India (supra) was rendered by the Supreme Court, the aforesaid two, two-",,,,,

Judge Bench, decisions of the Supreme Court in Satya Narain Shukla v. Union of India (supra) and K.M. Mishra v. Central Bank of India",,,,,

(supra) were earlier in point of time thereto and, therefore, as per law of precedents, ought to prevail, but that was not so. In Dev Dutt v. Union",,,,,

of India (supra), it was argued before the Supreme Court on behalf of the respondents therein that only an adverse entry needed to be",,,,,

communicated to an employee. This submission was made relying on the decisions of the Supreme Court in Vijay Kumar v. State of,,,,,

Maharashtra, (1988) Supp SCC 674, and State of Gujarat v, Suryakant Chunilal Shah, (1999) 1 SCC 529, where in at para 25 at p. 542",,,,,

it was held that:,,,,,

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.""",,,,,

The Supreme Court, however, observed: ""...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' (para 8). The paragraphs 9 to 17 of the judgment are,,,,,

relevant for the purpose of the controversy involved herein. These paragraphs of the judgment are quoted hereunder:,,,,,

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 rigour 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 1993-94 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.",,,,,

Learned counsel for the respondent submitted that under the Office Memorandum 21011/4/87 [Estt.'A'J 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.,,,,,

It has been held in Maneka Gandhi v. Union of India 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.",,,,,

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 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.,,,,,

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 up gradation, and such a representation must be decided fairly and within a reasonable period by the authority concerned.",,,,,

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 up gradation, and this may subsequently adversely affect their chances of promotion (or get some other",,,,,

benefit).,,,,,

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. For example, if the benchmark 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.,,,,,

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 up gradation. 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.,,,,,

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.""",,,,,

(Underlining supplied),,,,,

It needs to be noted here that the aforesaid decision was rendered by the Supreme Court on 12.05.2008. The DPC in the present case was,,,,,

convened on 06.04.2009- almost a year after the aforesaid decision of the Supreme Court. The law thus laid down by the Supreme Court in Dev,,,,,

Dutt v. Union of India (supra) was very much holding the field on the date the DPC was convened. The respondents could not have ignored the,,,,,

judgment, rather they were bound to obey and implement the judgment and the law laid down therein. It may be observed here that whereas under",,,,,

Article 141 of the Constitution of India, the law declared by the Supreme Court is binding on all Courts; under Article 144, all authorities civil,",,,,,

police and judicial in the territory of India, are required to act in aid of the Supreme Court. As such, even if no O.M. is issued by the Nodal",,,,,

Ministry, the law declared by the Supreme Court becomes binding from the date it is laid down and not from the date an authority may wish at its",,,,,

whim, caprice or discretion to go by such law.",,,,,

The two Judged Bench decision in Dev Dutt v. Union of India (supra) was later followed by a Bench of three Hon'ble Judges of the,,,,,

Supreme Court, headed by Hon'ble the Chief Justice of India, in Abhijit Ghosh Dastidar v. Union of India (supra). The relevant paragraph, viz",,,,,

para 8 of the judgment is quoted hereunder:,,,,,

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 ACR 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 for promotion or get 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 above referred decision 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.,,,,,

Learned counsel appearing for the appellant has pointed out that the officer who was immediately junior in service to the appellant was given,,,,,

promotion on 28.08.2000. Therefore, the appellant also be deemed to have been given promotion from 28.08.2000.",,,,,

Since the appellant had retired from service, we make it clear that he is not entitled to any pay or allowances for the period for which he had",,,,,

not worked in the Higher Administrative Grade Group-A, but his retrospective promotion from 28.08.2000 shall be considered for the benefit of",,,,,

re-fixation of his pension and other retrial benefits as per rules.""",,,,,

(Underlining supplied),,,,,

Thus, the two-Judge Bench decision in Dev Dutt v. Union of India (supra) read with the three-Judge Bench decision in Abhijit Ghosh",,,,,

Dastidar v. Union of India (supra) would prevail and hold the field, not the earlier two-Bench decisions in Satya Narain Shukla v. Union of",,,,,

India (supra) and K.M. Mishra v. Central Bank of India (supra) cited and relied upon by the learned ASGI. The law as settled by the,,,,,

Supreme Court is thus axiomatic that the entry of 'good' has to be communicated to an officer and non-communication of entries in the ACR has,,,,,

civil consequences because it affects his chances of promotion and/or get other service benefits. Such non-communication has been held to be,,,,,

arbitrary and, as such, violative of Article 14 of the Constitution.",,,,,

It is again note worthy that the aforesaid decision in Abhijit Ghosh Dastidar v. Union of India (supra) was rendered by the Supreme Court,,,,,

on 22.11.2008, i.e., almost five months prior to the DPC held in the instant case. The points sought to be raised by them in defence in the present",,,,,

petition have wholly been dealt with by the Supreme Court in the aforesaid two decisions. Therefore, these points should not lie in their mouth. By",,,,,

IN THE SUPREME COURT OF INDIA",,,,,

CIVIL APPELLATE JURISDICTION,,,,,

CIVIL APPEAL No. 2872 of 2010,,,,,

UNION OF INDIA,...APPELLANT,,,,

VERSUS,,,,,

A.K. GOEL & ORS.,...RESPONDENTS,,,,

WITH,,,,,

SLP(C) No. 17098 of 2011,,,,,

SLP(C) No. 17099 of 2011,,,,,

ORDER,,,,,

2003-04,2004-05,2005-06,2006-07,2007-08,"Recommendation of

PC

VG,G,VG,"3m-NIC, 9m-G",G,Unfit

Article 14 overrides all rules or government orders. When an entry is communicated to a public servant, he should have a right to make a",,,,,

representation to the authority concerned who must decide the representation in a fair manner and within a reasonable period. The representation,,,,,

must be diced by an authority higher than the one who gave that entry, otherwise likelihood is that the representation would be summarily rejected",,,,,

without adequate consideration.,,,,,

Coming to the instant case, when the petitioner gained knowledge about his non-inclusion in the promotion list in terms of Signal dated",,,,,

15.06.2009, he at first, vide his representation dated 16.06.2009 requested that his case for promotion from the rank of Deputy Commandant to",,,,,

Second-in-Command may be reconsidered. However, there was no response. Meanwhile, he gained knowledge about another Signal dated",,,,,

30.06.2009 whereby 11 of his juniors had further been brought on the promotion list. The petitioner made another representation dated,,,,,

08.07.2009 wherein, apart from reiterating his earlier request, he made a prayer that before allowing promotion to the 11 Deputy Commandants",,,,,

whose names figured in Signal dated 30.06.2009, his representation may be decided. In terms of communication dated 02.07.2009 he was",,,,,

informed that he had been found unfit by the DPC. Thereafter, the petitioner vide his representation dated 03.09.2009 prayed for supply of copies",,,,,

of the ACR due to which he had failed to achieve the prescribed benchmark. Vide communication no. P.VII.5/2009-Pers which appears to have,,,,,

been written on or around 23.11.2009, he was informed that such ACRs could not be communicated to him as, as per the instructions on the",,,,,

subject, only adverse remarks could be communicated to him. He was further informed that instructions issued vide OM dated 14.05.2009 were",,,,,

applicable only prospectively with effect from 01.04.2009. Identical responses were furnished to the petitioner in reply to his representations dated,,,,,

20.07.2010 and 05.08.2010. The final representation styled as ""Memorandum on supersession"" made by the petitioner to His Excellency the",,,,,

President of India is stated to be still pending.,,,,,

I have already mentioned that when the DPC was held on 04.04.2009, the judgment in Dev Dutt v. Union of India (supra) and Abhijit",,,,,

Ghosh Dastidar v. Union of India (supra) had long before been rendered by the Supreme Court. The law laid down therein was and is binding,,,,,

on the respondents. Secondly, the issue raised by the Union of India in Union of India v. A.K. Goel (supra), too, stands set at naught by the",,,,,

Supreme Court in its decision therein read with the judgment in Sukhdev Singh v. Union of India (supra). That being so, the only question that",,,,,

needs to be considered is as to what relief should be granted in the present case.,,,,,

The prayers made in this petition are that respondents be commanded to consider and decide his pending representation in light of the law laid,,,,,

down by the Supreme Court and to promote him retrospectively as Second-in-Command with effect from 15.06.2009 with all consequential,,,,,

service benefits in his favour. In his representation dated 14.11.2013, which is stated to be pending, he has prayed that a review DPC be",,,,,

constituted to consider him for promotion with effect from 15.06.2009 ignoring the un-communicated remarks. In Dev Dutt v. Union of India,,,,,

(supra), which the petitioner has all along been vehemently relying upon, the Supreme Court in penultimate paragraph of the judgment made the",,,,,

following directions:,,,,,

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.""",,,,,

In Abhijit Ghosh Dastidar v. Union of India (supra), it was said that since the appellant had retired from service, he would not be entitled to",,,,,

any pay or allowances for the period for which he had not worked in the Higher Administrative Grade Group A, but his retrospective promotion",,,,,

from 28.8.2000 shall be considered for the benefit of re-fixation of his pension and other retirement benefits as per rules. In para 8 of the,,,,,

judgment, however, it was observed that, ""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"".",,,,,

In Sukhdev Singh v. Union of India (supra), the following relief was granted to the appellant therein:",,,,,

Insofar as the present case is concerned, we are informed that the appellant has already been promoted. In view thereof, nothing more is",,,,,

required to be done. The civil appeal is disposed of with no order as to costs. However, it will be open to the appellant to make a representation",,,,,

to the authorities concerned for retrospective promotion in view of the legal position stated by us. If such a representation is made by the appellant,",,,,,

the same shall be considered by the authorities concerned appropriate in accordance with law.""",,,,,

It may also be mentioned that para 8 of the judgment in Abhijit Ghosh Dastidar v. Union of India (supra) was quoted and followed in the,,,,,

subsequent three-Judge Bench judgment in Sukhdev Singh v. Union of India (supra).,,,,,

The petitioner herein also stands promoted subsequently in July, 2011 as Second-in-Command. He continues to be in service. Applying the",,,,,

law so laid down by the Supreme Court, I am of the considered view that this petition deserves to be allowed, however, with directions akin to the",,,,,

directions given by the Supreme Court in Dev Dutt v. Union of India (supra). This is so because the Court is of the considered view that the,,,,,

'good' entries should have been communicated to the petitioner, if not earlier, at least, after the Supreme Court decision in Dev Dutt v. Union of",,,,,

India (supra), and before the DPC would consider such entries. Even the members of the DPC could have postponed accord of consideration to",,,,,

the officers till the judgment was fully implemented. If on communication of such entries representations were made by the affected person(s), like",,,,,

the petitioner, those ought to have been considered by the competent authority in accordance with the observations made by the Supreme Court in",,,,,

the aforesaid decision. The respondents and the concerned competent authorities have not done so. Their lapse, however, would not take away",,,,,

from them their such power and jurisdiction and this Court also would not assume to itself the power and jurisdiction which is otherwise conferred,,,,,

on them. Therefore, I am of the opinion that it would be appropriate to direct the respondents to follow the judgment in Dev Dutt v. Union of",,,,,

India (supra) in its letter and spirit.,,,,,

For the reasons and observations recorded above, this petition is allowed with a direction to the respondents that the 'good' entries in the",,,,,

ACRs of the petitioner, which have had an adverse implication on determination of his grade by the DPC conducted on 06.04.2009, be",,,,,

communicated to the petitioner within a period of two months from the date of receipt of the copy of this judgment. On being communicated, the",,,,,

petitioner may make a representation, if he so chooses, against the said entries within two months thereafter. The representation, if made, will be",,,,,

decided by the concerned competent authority within two months thereafter. If his entries are upgraded, the petitioner shall be considered for",,,,,

promotion retrospectively by the Departmental Promotion Committee (DPC) within two months thereafter. If the petitioner gets selected for,,,,,

promotion retrospectively, he would be entitled to all the service benefits, including salary, increments, arrears of salary, seniority and other benefits",,,,,

as would have accrued to him if he had been brought on the promotion list in normal course in terms of signal dated 15.06.2009. It is also,,,,,

provided here that in order to meet any eventuality or difficulty the respondents would be free to create a supernumerary post for the petitioner for,,,,,

the limited period between the date his juniors were brought on the promotion list and the date when he was actually promoted as Second-in-,,,,,

Command in 2011.,,,,,

Parties are left to bear their respective costs.,,,,,

The original records produced by the learned ASGI are returned to him in the open Court.,,,,,