M.A. Inbanathan vs The Chairman, Hindustan Aeronautics Limited and Others

Rathnakala, J.—This appeal is preferred aggrieved by the order passed by the learned Single Judge in W.P. No. 13730/1998 (S-PRO) whereby the writ petition for promotion of the writ petitioner with effect from the date of promotion of his juniors along with consequential benefits from the cadre of Manager (Grade-IV), etc., came to be rejected vide order dated 7.2.2006.

Briefly stated the appellant herein was working in the service of Grade-IV in the second respondent Company and was eligible to be promoted to Grade-V. But overlooking the petitioner, his juniors were promoted from Grade-IV to Grade-V by an order dt. 15.4.1998. On that, he filed a petition for Writ in the nature of Mandamus seeking the relief for promotion to the Grade-V with consequential benefits and to quash the order 28.6.2002 promoting his juniors. When the writ petition was pending his juniors who were arrayed as respondents-3 to 6 in the writ petition were promoted to Grade-IV vide order dt.28.6.2002. On that, the appellant amended his writ petition by seeking to quash the order of promotion of his juniors/respondents-3 to 6 therein dated 28.6.2002.

The grievance of the petitioner was, ''he is a master degree holder in Engineering with additional qualification of diploma in production management and was eligible for the promotion in the year 1995 itself; there were no adverse remarks against him and there was no justification on the part of the Management in overlooking his case while promoting his juniors. The management had contended that, the promotion policy for Executives 1991 was reviewed during October 1992 by increasing the gradation point from 6 to 9; though he was under the zone of consideration had not secured the minimum performance criteria of 9 point scale gradation immediately three years prior to 15.4.1998, hence, not promoted. On that, the petitioner reciprocated that the performance appraisal report was not communicated to him and same shall not be taken into account for the purpose of promoting him from Grade-IV to Grade-V, as the promotion policy of 1991 specifies that adverse remarks should make the officer concern ineligible for promotion to the next higher grade are to be communicated in writing to the employee''.

When the matter came up for consideration, learned Single Judge observed that, there were no adverse remarks against him, which were required to be communicated to him and his appraisal reports evaluate his performance following the procedure at various levels, gradation points given to him for the period 1995 to 1998 are not based on adverse remark, but purely on his performance and the question of communicating the same to him did not arise. Accordingly, the petition came to be rejected.

Aggrieved petitioner is in appeal against the said order, as party-in-person without legal assistance. His submission is, when the matter was pending before the learned Single Judge, after a lapse of 8 years, the Management took a new stand that there was change in the criteria for the promotion. In this regard, the Circular No. 608 dated 20.3.1991 was produced as Annexures-R3 and R4. Annexure-R4 was undated while Annexure-R3 i.e., Circular No. 608 was dated 20.3.1991. The earlier circulars, which were filed by the Management, were said to be modified by these circulars and further the Management contended that he is covered by the revised promotion policy that was introduced in the year 1991 by the Company, which came to be amended by way of two circulars under Annexures-R4 and R5; under the revised policy, he was not fit for promotion. But he had disputed the veracity of above circulars before the learned Single Judge himself by filing a counter affidavit, which was not considered. Now under the RTI Act, he obtained the copy of said Annexures-R4 and R5. These Annexures were never circulated among the divisions/offices of the company. As per the copies of Annexures-R4 and R5 obtained by him under the RTA Act, it is manifest that subsequently they have inserted the date in Annexure-R5 and there are no details available with regard to the meeting of Managing Directors and General Managers held on 29/30th October 1992 while issuing the Circular/Annexure-R4 and they have admitted inserting the date ''26'' in the Annexure R-5. Hence, Annexures-R4 and R5, which were produced before the learned Single Judge, are fake documents. His performance appraisals are also manipulated and the copies of the same have been obtained by him from this Court after his application I.ANo. 2/2008 was allowed. A perusal of his annual confidential report of the year 1994-95 demonstrates that the Initiating Authority had graded him at ''8'', Reviewing Authority at ''7'', Senior Reviewing Authority at ''7'' and Division Head (General Manager) at ''7'' but the Chief Manager (PandA) in the office of the Managing Director and Secretary of PRC downgraded him from ''7'' to ''6''. This downgrading is not communicated to him likewise, for the year 1995-96, his grading was done not in accordance with the rule of the company. The reviewing authority cannot be a Grade-V Officer for assessing the appellant, who is a Grade-IV officer. One N. Venkatakrishnaiah, who is a Grade-V Officer has graded him in the capacity of Initiating Authority and also Reviewing Authority. His grading as ''6'' was not agreed by the Department Head (Grade-VIII) by name M. Seetharamaiah. He had given him overall gradation of ''7''. But the General Manager of the Division gave him the grading of ''6''. He could not make any representation to his downgrading, since no open channel of communication with regard to ACR is available as per the rule of the company. In the subsequent year 1996-97, he was transferred from his original department to the department of progress and he worked there for one year, however, he was downgraded by the authorities with malafides. In this regard also, there was no information to him. For the year 1997-98, he worked in the department of material planning, he was graded at ''7'' by Initiating Authority, Reviewing Authority and Senior Reviewing Authority. But the division head downgraded him at ''6'' and the performance review committee also downgraded him for ''6'' without any reason. He is superannuated in the year 2008, still he is entitled for notional promotion from the date his juniors were promoted, with difference of monitory benefits and consequential fixation of pensionary benefits.

In reply, Sri. S.S. Ramdas, learned Senior Counsel for the respondents submits that the Personnel Appraisal Report for the Officers in Grade IV to Grade VI (the appellant at the relevant time was working in Grade IV) contains three parts: Part A is the Self Appraisal Form which has to be filled up by the Officer himself and assess his own work; Part B is the Appraiser''s Assessment which has to be filled by the Initiating Authority and Part C is the remarks of the higher Authority. The General Manager after taking into consideration the entire assessment made by the Officer/Appraisee and appraiser, assigns an overall gradation and thereafter places the entire record before the Performance Review Committee which is the Final Authority insofar as the gradation is concerned. This Performance Review Committee is headed by the Managing Director of the Complex and consists of General Managers of the Divisions. The final assessment and gradation by the Performance Review Committee was rated for the year 1994 - 95, 1995 - 96, 1996 - 97 and for the year 1997 - 98, as follows:

The promotion policy of the Executives previously specified the eligibility criteria at 6 points. But in the October 1992, the points for gradation was increased from 6 to 9 vide Circular No. HAL/PandA/43 (1) 93. Accordingly, for the promotion to Grade V and VI through DPC (merit) the candidate should have secured minimum two "Above Average - 7" and one "Average-6" gradation resulting in cumulative gradation of 20 in three years reports during the last four years. The scale of gradation is contained at B9 of Part B of the Performance Appraisal Report. Accordingly, Point 9 is exceptional, Points 8 and 7 are Above Average, Points 6, 5 and 4 are Average and Points 3, 2 and 1 are Below Average. Since, the appellant secured average gradation and did not qualify for the eligibility criteria as per 9 point gradation scale, in the last 4 years, his name was not recommended for promotion. All through, he was an average performer. This average gradation does not amount to adverse remarks hence, it was not required to be communicated to him. As per the Personnel Circular No. 608 at Clause 16 an oral feed back system is contemplated. Written communication is contemplated only as and when need arise 1s. No hearing in contemplated at any of the stage while assessing by Initiating Authority, Reviewing Authority, Senior Reviewing Authority and Performance Review Committee. Further, there is no opportunity of hearing in the event of gradation assigned is reduced by the General Manager or the Performance Review Committee. During the relevant period of 1994 - 98, it was not a mandate of the rules to communicate every entry in the ACRs to the Officer concerned. His rating was average and cannot be considered as reduction to render him ineligible for promotion. This course of judicial review in the matter of promotion is extremely limited and a direction cannot be given to the executive for reconsideration. Promotion to the Grade V, in the matter of the appellant is purely on the basis of the merit and he cannot claim promotion as of right. It is only the Management which can assess the suitability or otherwise of the employee depending on his abilities, qualities and the attributes necessary for the task. It is in the public interest that the refined and sophisticated evaluation be left to be done by the Management Authority only and not by way of judicial interference. The learned Single Judge on appreciation of the fact that the General Manager has gone in detail and has assigned over all gradation and same was further considered by the Performance Review Committee consisting of the Managing Director of the Complex and the General Managers of various Divisions, declined to invoke the writ jurisdiction to grant relief and this Court in its appellate jurisdiction cannot interfere with the action of the Management for not recommending the case of the appellant for the promotion to Grade V. Whenever the view taken by the learned Single Judge is proper and based on well settled principles of law, the Appellate Court declines to interfere with the order of the learned Single Judge. The petitioner has superannuated in the year 2008 itself and exercise of reconsideration of his case need not be embarked upon and the appeal is liable to be dismissed in limine.

Keeping aside the controversy, which the appellant has raised about the genuineness of the Circular No. 608 dated 20.3.1991 (since the said controversy is already dealt before the administrative forum of the respondent and also criminal justice system), the fact that remains undisturbed is, appellant was not communicated his grading since the policy governing the service condition of the respondent/institution do not contemplate such communication. In the case of Dev Dutt Vs. Union of India (UOI) and Others, , a matter pertaining to a promotion of an Executive Engineer serving in the border roads of engineering service, who was denied promotion by holding that he is not eligible for promotion, but his junior was selected and promoted to the rank of Superintending Engineer, the Apex Court observed as follows:

"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 Gandhi vs. 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".

The principle laid down in the case is made applicable in all force where in civil, judicial, police or any other State service and the dictum is the Annual Confidential Report of the public servant must be communicated to him within a reasonable period, so that he can make a representation for its upgradation. While arriving at the conclusion that non-communication of the entries in the Annual Confidential Report of the public servant has civil consequence because it may affect his chances for promotion to get other benefits and non-communication is arbitrary and violative of Article 14 of the Constitution of India, the Apex Court has examined its own previous pronouncements relied for both the parties. This judgment squarely meets the lis on hand. In the case cited supra, by the time the appeal came to be disposed, the appellant on reaching superannuation had retired from service. His prayer in the appeal was for upgradation of the entry in his Confidential Report. While allowing the appeal, a direction was issued to the Management to communicate the good entry (recorded in his Confidential Report) of 1993-94, forthwith with permission to the appellant to make representation against the same praying for its upgradation. If the upgradation is allowed, he should be considered forthwith for promotion as Superintendent Engineer retrospectively and if he is promoted, he will get the benefit of higher pension and the balance of arrears of pay along with interest @ 8% per annum.

Previously this Court had an occasion to deal with the writ petitions filed by the officers serving under the very same respondent before us, when they were deprived of the promotional opportunity. A copy of the judgment passed by the learned Single Judge of this Court in W.P. No. 20012/1989 DD 11.2.1999 is placed before us. In the said case, following the earlier judgments of this Court, the learned Single Judge held that the petitioner therein was entitled for the benefit of promotion with monetary benefits till the date of superannuation and the said judgment is acted upon by the Management.

Though the appellant herein is not a civil servant in the strict sense, he being the employee of the HAL, which is also an instrumentality of the State, deserves the benefit of Dev Dutt''s case. In the light of the said judgment, we land upto the point that non-communication of the entries in the Confidential Report of the appellant which resulted in keeping him away from the process of selection to the next promotional post is arbitrary and not legal. However, in view of the established position of law, it is not for the Court to promote an employee without examining his suitableness to the promotional post, his merit and talent. In the light of the principle pronounced by the Apex Court in Dev Dutt''s case, it is required that this case shall be remanded to the respondent/authority which shall re-consider the case of the appellant to the promotional post of Grade-V, if he is found suitable, after affording opportunity to the appellant to make representation to the Management about entries recorded in his Confidential Report. After considering his representation, if he is found otherwise suitable, he shall be notionally promoted to the Grade-V from the date on which his juniors were selected to the said post. The consequential monetary reliefs and the retirement benefits shall follow his promotion.

Accordingly, the appeal is allowed.

The order passed by the learned Single Judge in W.P. No. 13730/1998 dated 7.2.2006, is hereby set aside.

The respondent/authority is directed to communicate the entries pertaining to the appellant for the relevant period within one week from the date of obtaining the certified copy of this order. On receiving the same, the appellant shall submit his representation to the respondent/authority within ten days thereafter. On receipt of the representation of the appellant, the respondent/authority shall dispose of the matter as expeditiously as possible not later than four months from thereafter. If he is found otherwise suitable, his case shall be considered in accordance with the principles laid down by the Apex Court in Dev Dutt''s case (supra) and also observation made above.

In view of disposal of main matter on merits, I.A. Nos. 2/2008, 1/2011, 2/2011 and 1/2014 are disposed of as having become infructuous.