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Judgment
N. Paul Vasanthakumar, C.J. - This Writ Petition is filed praying to quash Order dated 27.11.2011 passed by Respondent No.2 as well as
Orders dated 18.2.1997 & 1.7.1997 and for directing the Respondents to promote the Petitioner as Clerk Grade-I w'.e.f. 1.2.1997 with all
consequential benefits of Seniority and Promotion.
The case of the Petitioner is that he was given an Order dated 18.2.1997 stating the postponement of the Promotion as Clerk Grade-I due to
adverse remarks in the Performance Appraisal Report recorded for the period ended 30.6.1996, which read thus:
(i) Due to his insubordination always he has shown disrespect to Senior Officers.
(ii) Though he is having abilities and knowledge about working but due to his disinclination for section work he has put his competencies to astray.
It is also stated in the said communication that his promotion as Clerk Grade-l is postponed upto 17.8.1997 without prejudice to his seniority. The
Appeal was preferred against the said Order and without any speaking Order the Petitioner was informed that his Appeal is rejected. Thereafter a
Writ Petition was filed bearing SWP No. 1748/1997 before this Court against the Order of the Appellate Authority and this Court by Order dated
31.5.2001 set aside the Order of the Appellate Authority and remanded the matter to the Appellate Authority for passing a speaking Order by
giving reasons. Thereafter the Appellate Authority by a speaking Order dated 27.11.2001, stating about the adverse entries, rejected the Appeal.
Learned Senior Counsel appearing for the Respondents produced the entire file wherein performance of the Petitioner was reviewed
periodically and entries were made. However, the file did not reflect communication of the adverse remarks to the Petitioner at any point of time
except in the Order dated 18.2.1997. Order 18.2.1997 is an order informing the Petitioner about postponement of his promotion due to adverse
entries and not communicating the adverse entries and calling for objections/representation.
Learned Senior Counsel appearing for the Petitioner argued that un-communicated adverse entries cannot be relied on to deny or postpone
promotion or for denying ACP benefits or any other benefits.
I have considered the said submissions.
It is well settled proposition of law that on entering adverse remarks in the Service Register, the Govt, servant concerned should be
communicated the adverse entry(ies) and he/she should be given opportunity to represent about the adverse entry made and unless adverse
entry(ies) is/are communicated and opportunity is given and review was made and communicated, the said adverse entry(ies) cannot be relied on
for the purpose of denying promotion or getting other benefits.
The said issue has been considered by Hon'ble the Supreme Court in decision reported as Gurdial Singh Fijji v. State of Punjab, 1980 (2)
LLN 143 (SC): AIR 1979 SC 1622, and held that:
The principle is well-settled that in accordance with the Rules of Natural Justice, an Adverse Report in a confidential roll cannot be acted upon to
deny promotional opportunities unless it is communicated to the person concerned so1 that he has an opportunity to improve his work and conduct
or to explain the circumstances leading to the Report. Such an opportunity is not an empty formality, its object, partially, being to enable the
superior Authorities to decide on a consideration of the explanation offered by the person concerned, whether the adverse Report is justified
Hon'ble the Supreme Court in its decision reported as Dev Dutt v. Union of India and others, 2008 (3) LLN 621 (SC): 2008 (8) SCC 725,
held thus:
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 we 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, AIR 1978 SC 597, that arbitrariness violates Article 14 of the Constitution.
Hon'ble the Supreme Court in Para 8 of the Judgment reported as Abhijit Ghose Dastidur v. Union of India and ors., 2009 (16) SCC 146,
held thus:
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 Applicant. The entry of 'good' should have been communicated to him, as he was having ""very good"" in the
previous year, those circumstances, in our opinion, non-communication of entries in the Annu Confidential Report of a Public servant whether he is
in Civil, Judicial, Police any other service (other than the armed forces), it has Civil consequences because it may affect his chances for 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 above referred 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
A Larger Bench of the Hon'ble Supreme Court, in the case of Sukhdev Singh v. Union of India and others, 2013 (2) LIN 578 (SC) : 2013
(9) SCC 566. held that the view taken in Dev Dutt's case, 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 three fold 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; secondly, on being made
aware of the entry in the ACR, the Public servant may feel dissatisfied with the same and communication of the entry enables him/her to make
representation for up-gradation of the remarks entered in the ACR; thirdly, communication of every entry in the ACR brings transparency in
recording the remarks relating to a Public servant and the system functions more in conformity with the Principles of Natural Justice. Accordingly
the Hon'ble Supreme Court held that every entry in the ACR, namely, poor, fair, average, good or very good, must be communicated to the
Employee concerned, within a reasonable time. At this juncture, it would be beneficial to refer to the relevant Paragraphs of the said Judgments,
which reads as follows:
In our opinion, the view taken in Dev Dutt v. Union of India, 2008 (8) SCC 725 : 2008 (2) SCC (L&S) 771, that every entry in the ACR
of a Public servant must be communicated to him/her within a reasonable period is lgellay 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. Secondly 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 up-gradation 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. W e, accordingly, hold that every entry in the ACR-poor, fair, average, good or
very good-must be communicated to him/her within a reasonable period.
The decisions of this Court in Satya Narain Shukla v. Union of India, 2006 (9) SCC 69 : 2006 SCC (L&S) 1599, and the other decisions
of this Court taking a contrary view are declared to be not laying down good law.
In the case of Union of India v. A.K. Gael & ors., C.A. No.2872 of 2010, which was referred to the Larger Bench, came up before the
Hon'ble Supreme Court and the same was disposed of, by Order dated 20.11.2013, wherein the Hon'ble Supreme Court observed that, the
reference has been correctly and squarely answered by the Larger Bench decision in Sukhdev Singh's case (cited supra) and therefore, held that
since the question has already been answered, there is no necessity for further consideration by the Larger Bench.
Before the Larger Bench of the Hon'ble Supreme Court, in Union of India v. A.K. Gael & ors.. C.A. No.2872 of 2010, on behalf of the
Union of India, it was pointed out that there was no cut-off date intimated, as regards the applicability of the decision in Dev Dutt's case (cited
supra), and this aspect needs to be decided by the Larger Bench. Rejecting the submission of the Union of India, it was pointed out that the only
point, on which reference is made stands answered in Sukhdev Singh's case (cited supra) and there is no necessity for any further consideration by
the Larger Bench.
A Division Bench of Madras High Court in W.P. Nos.33792 & 33829 of 2013 Bharat Sanchar Nigam Limited and others v. The
Registrar, Central Administrative Tribunal and others, 2014 (2) LLN 219 (DB) (Mad.), following the above cited Judgments by Order
dated 16.12.2013 upheld the Order of the Central Administrative Tribunal allowing the O.A. and directed to consider the promotion claim by
convening the DPC and decide without reference to the non-communicated ACR entries.
In light of the said undisputed fact namely adverse entries were not communicated to the Petitioner prior to Order dated 18.2.1997,
postponement of promotion for six months based on the Circular issued by the Bank dealing with the postponement of promotion for six months to
the person, whose service shows adverse entries can not be sustained Consequently the impugned Order is set aside. By following the decisions
cited supra the Petitioner shall be promoted as if he was not suffering with any disqualification for deferring his promotion when his juniors were
promoted with consequential benefits. Necessary Orders are directed to be passed by the concerned Respondent within a period of three months
from the date of receipt of copy of this Order.
Writ Petition is allowed with above directions. No costs.