Shri Khumanthem Dilip Singh vs The Manipur Public Service Commission (MPSC) through its Secretary, Imphal, & Ors.

Heard Shri Kh. Tarunkumar, the learned counsel appearing for the petitioner; Shri R.K. Umakanta, the learned Addl. Government Advocate appearing for the MPSC, Shri S. Nepolean, the learned Government Advocate appearing for the respondent No. 2 and Shri N. Bipin, the learned counsel appearing for the respondent No. 3.

By the instant writ petition, the petitioner has questioned the legality and correctness of the proceedings of the DPC meeting held on 28-12-2013 and prays for quashing the impugned order dated 01-02-2014 issued by the Deputy Secretary to the State Government.

1. According to the petitioner, he was initially appointed to the post of Geologist on regular basis on the recommendation of the Manipur Public Service Commission (hereinafter referred to as "the MPSC") vide order dated 24-05-1986 issued by the Under Secretary (Industries), Govt. of Manipur. On 23-11-2012, the Principal Secretary (Com. & Ind.), Govt. of Manipur issued a notification publishing the Final Seniority List of Geologist wherein the name of the petitioner appeared at Sl. No. 1 and that of the private respondent at Sl. No. 2. 3.2. On 15-09-1979, the Under Secretary (DP), Govt. of Manipur had issued a notification notifying the Recruitment Rules for the post of Joint Director of Industries (Geology) and as per the said Recruitment Rules, the post of Joint Director is a Class-I (Gazetted) Selection Post. On 27-12-2013, the Deputy Secretary (Com. & Ind.), Government of Manipur issued a notification stating that a meeting of a Departmental Promotion Committee (DPC) would be held on 28-12-2013 in the office chamber of the Hon''ble Member, MPSC to consider the eligible persons for appointment on promotion to the post of Joint Director (G & M) in the Department of Commerce & Industries, Manipur. Being suspicious of some foul play in the proceedings of the DPC, the petitioner filed an application under Section 6(1) of the Right to Information Act, 2005 seeking information as regards (i) Name of the eligible persons considered by the DPC on 28-12-2013; (ii) Copies of Annual Confidential Reports (ACRs) of five years of every candidate considered by the DPC; (iii) Copy of the proceedings of the DPC held on 28-12-2013 and (iv) Provisions of law empowering the member of the MPSC to chair the DPC of a Class-I Gazetted post in the absence of the Chairman of the MPSC.

3.3. On the recommendation of the said DPC, the Deputy Secretary (Com. & Ind.), Government of Manipur issued an order dated 01-02-2014 whereby the private respondent was appointed on promotion to the post of the Joint Director of Industries (G & M) in the Department of Commerce & Industries, Manipur. After the private respondent having been appointed, the Additional Secretary, MPSC furnished a copy of the proceedings of the DPC meeting held on 14-02-2014 and in respect of the ACRs, the Deputy Secretary (Com. & Ind.), Manipur informed the Director (Com. & Ind.) on 13-03-2014 that copies of the ACRs need not be furnished to the petitioner. As the concerned authorities failed to furnish the information as regards the grading of the ACRs from the official respondents and being aggrieved by the inaction on the part of the respondents, the present writ petition has been filed by the petitioner.

The stand of the MPSC as indicated in its affidavit, is that there was no irregularity on the part of the DPC, as the DPC had considered the relative merits of the eligible persons and in particular, the assessment chart wherein the ACRs grading in respect of the petitioner and the private respondent was "very good" and "outstanding" respectively. The private respondent having higher ACRs grading, was recommended for promotion to the post of Joint Director (G & M). The stand of the State Government is similar to that of the MPSC and in addition thereto, it has been stated that the ACRs grading of the petitioner ought to be communicated to him only when there is adverse remark against him in his ACR. The private respondent also filed an affidavit-in-opposition supporting the stances of both the State Government and the MPSC.

There is no dispute on facts and the only contention of Shri Kh. Tarunkumar, the learned counsel appearing for the petitioner is that since he was not communicated about the entry made in his ACRs, the same ought not to have been made the basis for consideration of promotion and therefore, the proceedings of the DPC being arbitrary and illegal, are liable to be quashed and consequently, the Government order dated 01-02-2014 is bad in law. In support of his contention, he has relied upon the decision of the Hon''ble Supreme court in Dev Dutt Vs. Union of India & ors., reported in (2008) 8 SCC 725 wherein the appellant therein, having completed five years on the grade of Executive Engineer, was eligible for promotion to the post of Superintending Engineer. The DPC held its meeting on 16-12-1994 wherein the appellant was held to be ineligible and his junior was selected and promoted to the post of Superintending Engineer. Being aggrieved by such promotion of his junior, the appellant filed a writ petition which was dismissed and the appeal preferred before the Division Bench also failed. The Hon''ble Supreme Court allowing the appeal held:

"16. 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" or "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 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 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 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.

In our opinion, fair play required that the respondent should have communicated the "good" entry of 1993-1994 to the appellant so that he could have an opportunity of making a representation praying for upgrading the same so that he could be eligible for promotion. Noncommunication of the said entry, in our opinion, was hence unfair on the part of the respondent and hence violative of natural justice.

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."

The view taken in Dev Dutt case was affirmed in Sukhdev Singh Vs. Union of India, reported in (2013) 9 SCC 566 wherein a two-judge bench of the Honble Supreme Court felt that on the issue relating to the communication of an entry in the ACR of an employee, there was inconsistency in the decisions of the Hon''ble Supreme Court in U.P. Jal Nigam Vs. Prabhat Chandra Jain, reported in (1996) 2 SCC 363 and Union of India Vs. Major Bahadur Singh, reported in (2006) 1 SCC 368 and accordingly, the matter was referred to a larger bench. Answering the reference and overruling the decision in U.P. Jal Nigam case, the Hon''ble Supreme Court held:

"8. In our opinion, the view taken in Dev Dutt 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 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. Second 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 upgradation 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. We, accordingly, hold that every entry in 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 and K.M. Mishra v. Central Bank of India and the other decisions of this Court taking a contrary view are declared to be not laying down good law."

On the other hand, Shri S. Nepoleon, the learned Government Advocate has submitted that the facts of the said two cases mentioned above, are not similar to that of the present case and therefore, the law laid down therein is not applicable to the facts of the present case. In order to substantiate his contention, he has referred to the Office Memorandum dated 29-04-1999, issued by the Government of Manipur, wherein certain principles are laid down as regards the basis for preparation of panel for promotion by the DPC, one of which being that officers graded as "outstanding" would rank en-block senior to those who are graded as "very good" and the overall grading assigned to each candidate would form the said basis. Relying upon the decision in M.V. Thimmaiah & ors. Vs. Union Public Service Commission & ors., reported in (2008) 2 SCC 119 wherein recommendation of the Selection Committee to fill up 8 vacancies belonging to the non-State Civil Services Officers of Karnataka to Indian Administrative Service of Karnataka cadre on the ground of malafide, arbitrariness etc., it has been submitted by Shri S. Nepoleon, the learned Government Advocate that it is always within the power of the Selection Committee to record its own assessment about the selection which may be at variance with that of the reporting officer or reviewing officer and the court cannot sit as an appellate authority to examine the recommendation of the Selection Committee like the court of appeal. It has further been submitted that in view of the above law, the proceedings of the DPC meeting held on 28-12-2013 which suffer no illegality, cannot be interfered with by this court. There is no dispute at all and there can be no any dispute about the law being laid down by the Hon''ble Supreme Court in M.V. Thimmaiah case but the same will not apply to the facts of the present case. It may be noted that before the preparation of a panel, three things are required to be done by the DPC - one, to see whether ACRs of all the eligible candidates are available or not; two, the preparation of an overall grading based on the assessment chart and three, officers graded as "outstanding" would rank en-bloc senior to those who are graded as "very good" and officers graded as "very good" would rank en-bloc senior to those who are graded as "good" and placed in the select panel accordingly upto the number of vacancies. In the present case, this court is concerned with the first one only relating to the entries being made in the ACRs which are prepared by the Administrative Department and in this regard, the role of a DPC arises, only when there is variation in respect of entries made by the officers. As has been held by the Hon''ble Supreme Court, non-communication of such entry in the ACRs is arbitrary and the DPC proceedings based on such entry shall definitely be rendered bad in law.

In Dev Dutt case, the grievance of the appellant was that he was not communicated the "good" entry for the year 1993-1994 and had he been informed about it, he would have got the opportunity of making a representation. Having not done so, the rules of natural justice have been violated. The Hon''ble Supreme Court examined all aspects as regards the entry in the ACR namely the concept of adverse entry; the requirement of communication of entry and the effect of noncommunication of entry. With respect to concept of adverse entry, what is relevant is not the nomenclature like fair, good, very good etc., but it is the effect which the entry is having, determines whether it is an adverse entry or not. It is the rigour of the entry which is important and 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. The reason as to why the entry in the ACR is to be communicated, is to give an opportunity to the employee of making a representation if he is aggrieved by it. Non-communication of entry is violation of the principle of fairness which is the soul of natural justice and arbitrariness violates Article 14 of the Constitution. The Hon''ble Supreme Court went ahead further by observing that even the O.M, if interpreted to mean that only adverse entries are to be communicated to the employee concerned and no other entries, would become arbitrary and hence, illegal. 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 be illegal and are to be ignored. In the instant case also, the grievance of the petitioners is that since the entry in his ACRs is not communicated to him, the proceedings of the DPC based on the said un-communicated ACRs are arbitrary, to which the stand of the respondents is that the entry in the ACRs not being adverse to the petitioner, the same is not required to be communicated to him. Therefore, the contention of the respondents that the law laid down in Dev Dutt case will not apply to the facts of the case, has no substance and is accordingly not acceptable to this court. Admittedly, the petitioner is senior to the private respondent but because of the fact that the petitioner was given an overall grading of "very good", he was held ineligible and the private respondent was given promotion. Out of five years, the petitioner was given a grading of "outstanding" in respect of the last two years and in respect of the 2nd and 3rd years, the grading given was only "good" and had the entry in respect of 2nd year been communicated to the petitioner, he would have got the opportunity to make a representation or would have improved himself in the 3rd year. Since the petitioner was not communicated the entries in respect of the first three years, he did not get the opportunity to make a representation and therefore, the inaction on the part of the authorities was arbitrary being violative of Article 14 of the Constitution and the un-communicated entries would not have been made the foundation for consideration of promotion. Having heard the learned counsels appearing for the parties, this court is of the view that the issue involved herein is squarely covered by the decision rendered in Dev Dutt case and affirmed in Sukhdev Singh case with the result that the proceedings of the DPC and the order dated 01-02-2014 issued in consequence thereof, are not sustainable in law.

For the reasons stated herein above, the instant writ petition is allowed and consequently, the proceedings of the DPC meeting held on 28-12-2013 and the order dated 01-02-2014 issued by the Deputy Secretary appointing the private respondent on promotion to the post of Joint Director of Industries (G & M) are quashed and set aside. There shall be no order as to costs.