Satpura Kshetriya Gramin Bank vs Ved Prakash Arya

Dipak Misra, J.

This batch of writ appeals preferred u/s 2(1) of the M.P. Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005 assailing the faultlessness of the order dated 10.5.2006 passed by the learned single Judge in WP No. 2682/2002, WP No. 2683/2002 and WP No. 2684/2002, were heard analogously and are disposed of by the singular order. For the sake of clarity and convenience, the facts in Writ Appeal No. 228/2006 which arises from WP No. 2683/2002 are uncurtained herein. Be it placed on record, the factual scenario in each case is the same.

The respondent invoking the extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India challenged his non-promotion to the post of Scale - II post and prayed for issue of a writ of mandamus to command the respondent therein to promote him with effect from 1.4.2002 with all consequential benefits. As pleaded, he was appointed to the post of Officer in the Kshetriya Gramin Bank (in short ''the Bank) on 11.3.1983 and his services were confirmed on 30.3.1986. A set of Rules, namely, Regional Rural Banks (Appointment and Promotion of Officers and other Employees) Rules, 1998 (in short ''the Rules'') was framed under the Regional Rural Bank Act, 1976 for appointment and promotion of the employees. The third Schedule of the said Rules provides for appointment of different categories of the officers and stipulates the eligibility criteria and mode of selection. As regards the Scale II officers it is specifically provided therein that the source of appointment shall be 100% by promotion and criteria of the promotion shall be on the basis of seniority-cum-merit. As far as the writ petitioner is concerned, he was holding the post of officer in the Bank for eight years on regular basis and he was entitled to be considered for promotion in Scale II post in the Bank. Under the Rules, the mode of selection is to select suitable person on the basis of written test, interview and the assessment of ''performance of appraisal'' of last five years.

As setforth, the Bank decided to promote Scale -I officers to the available 17 posts of Scale II officers and accordingly issued the guidelines in that regard. A copy of the same has been brought on record as Annexure P-2 to the writ petition. Under the guidelines, no minimum marks are required in the interview and a general category candidate is required to secure minimum 34 marks. The marks awarded for the interview and performance appraisal are required be added to the total marks. As per the stipulation in the guidelines a candidate who was declared successful in the written test is to be called for the interview. The Bank decided to call 68 candidates for interview as they were eligible. The petitioner being eligible under the Rules appeared in the written test as well as in the interview and was placed at Sr. No. 43 in the seniority list. Various assertions were made in the writ petition about the service graph of the petitioner and how he was having excellent service record. Despite the same the writ petitioner was not selected for the post in question. It was contended before the writ court that in the interview and appraisal no minimum marks were required and as the petitioner obtained more than quailing marks in the written test, he could not have been denied promotion. It was urged that a representation was submitted to the Bank but the same fell into deaf ears.

The stand and stance of the writ petitioner were combated by the bank contending, inter alia, that 20 marks were allotted for interview and 20 marks were allotted for performance appraisal reports for the preceding five years. There were 100 marks for written test, interview and performance appraisal reports of last five years. According to the appellant bank, the management issued a circular on 23.1.2001 before commencement of the process of promotion vide Annexure R-1 and as per the said circular interview carried 20 marks and 20 marks were allotted for the purpose of appraisal. The grading of performance of five years as has been stated by the respondent is as follows:

Category

Grading

Numerical Assessment

Excellent

''A''

20

Very Good

''B''

15

Good

''C''

10

Average

''D''

00

As setforth, the petitioner obtained 28 marks in the written test and secured 3 marks in the interview and for performance appraisal of past five years he got Zero marks as there was grading ''D'' for the preceding five years. In toto he secured 31 marks whereas the minimum qualifying marks was fixed as 34.

It was contented by the writ petitioner that the adverse entries were not communicated to him and, therefore, the petitioner could not have been qualified as he did not have the opportunity to represent.

The learned single Judge perused the recommendation of the Departmental Promotion Committee and opined that on the basis of the 1998 Rules the benefit of promotion is to be extended on the basis of the marks obtained in the written test, interview and performance appraisal reports but unfortunately the petitioner had not been given any marks for performance appraisal reports as he was awarded ''D'' The learned single Judge placed reliance on the decision rendered in Shiva Nand Prasad v. Chief of Army Staff and Others, 1993 MPST 344 wherein it has been held that if an entry takes away the case of an officer out of consideration for promotion and renders him unfit, such an entry must be treated as adverse necessitating its communication and opportunity of representation against the same. As in the case at hand grading ''D'' has worked adversely against the petitioner and there had been no representation they cannot be permitted to be placed reliance upon. Being of this view, he came to hold that the assessment of the DPC as far as the petitioner is concerned, is faulty. On the aforesaid basis foundation the writ Court directed the respondents to re-consider the case of the writ petitioner for promotion to the post of Scale II and if he is found fit, be promoted with all consequential benefits from the date when other 13 candidates were promoted.

Mr. A.P. Shroti, learned counsel appearing for the appellant - bank submitted that the learned single Judge has failed to appreciate that as per the Rules, the promotion was to be made on the basis of seniority-cum-merit and regard being had to the said principle a bench-mark was fixed and once the respondent did not meet the bench-mark the conclusion arrived at by the DPC cannot be found fault with. It is his further submission that the respondent had never complaint about his ACRs and, therefore, he cannot come forward to challenge as regards the performance appraisal reports. In the alternative, it is submitted by him that the learned single Judge has fallen into serious error by directing consideration of the case for promotion straight away and if he is found suitable, to promote him with all consequential benefits. Pyramiding the last plank of submissions it is submitted by him that the learned single Judge could not have ignored in entirety the gradings as the same really stand against the respondent and as long as they stand, his case cannot be reconsidered as the same result would ensue.

Mr. Maindiretta, learned counsel appearing for the respondent supported the order passed by the learned single Judge.

The singular question that emerges for consideration whether the ACR entries which were adverse could have been considered by the DPC in view of the fact that they were not communicated to the respondent. In this regard we may refer with profit to the decision rendered by the Apex Court in Dev Dutt Vs. Union of India (UOI) and Others, wherein their Lordships have held as under:

In our opinion if the office memorandum, dated 10/11-9-1987, is interpreted to mean that only adverse entries (i.e. "poor" entry) need to be communicated and not "fair", "average" of "good" entries, it would become arbitrary (and hence illegal) since it may adversely affect the incumbent''s chances of promotion, or to 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 for only one year 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 of caste or communal prejudice, or to for some other extraneous consideration.

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 noncommunication 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 the Court in Maneka Gandhi vs. 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, 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.

After so holding their Lordships laid down as follows:

In the present case, we are developing the principles of natural justice by holding that fairness and transparency in public administration requires that all entries (whether poor, fair, average, good or very good) in the annual confidential report of a public servant, whether in civil, judicial, police or any other State service (except the military), must be communicated to him within a reasonable period so that he can make a representation for its upgradation. This in our opinion is the correct legal position even though there may be no rule/GO requiring communication of the entry, or even if there is a rule/GO prohibiting it, because the principle of non-arbitrariness in State action as envisaged by Article 14 of the Constitution in our opinion requires such communication. Article 14 will override all rules or government orders. 31. We further hold that when the entry is communicated to him the public servant should have a right to make a representation against the entry to the authority concerned, and the authority concerned must decide the representation in a fair manner and within a reasonable period. We also hold that the representation must be decided by an authority higher than the one who gave the entry, otherwise the likelihood is that the representation will be summarily rejected without adequate consideration as it would be an appeal from Caesar to Caesar. All this would be conducive to fairness and transparency in public administration, and would result in fairness to public servants. The State must be a model employer, and must act fairly towards its employees. Only then would good governance be possible.

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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 military), certainly has civil consequences because it may affect his chances for promotion or get other benefits (as already discussed above). Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution.

Judged on the touchstone of aforesaid enunciation of law, we are of the considered opinion that admittedly, the grading i.e. ''D'' for five years were not communicated to the respondents. The assessment made by the DPC as far as respondents are concerned, is vulnerable. In fitness of things, the respondents should be allowed to represent against the gradings within a period of six weeks praying for their upgradation and the competent authority shall deal with the matter within a period of six weeks therefrom. After the said determination of DPC shall consider the cases of the respondents afresh as per the norms. In case the respondents are found fit, they shall be extended all consequential benefits.

Resultantly the writ appeals are allowed in part and the order passed by the learned Single Judge is modified to the extent indicated above. There shall be no order as to costs.