Himachal Pradesh High Court
Krishan Chand vs State Of H.P. & Others on 6 September, 2017
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CWP No. 6586 of 2012 .
Decided on: 6th September, 2017 ____________________________________________________________________ Krishan Chand .......Petitioner Versus State of H.P. & others .......Respondents ____________________________________________________________________ Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1Yes For the petitioner:
r Mr. Ajay Sharma, Advocate.
For the respondents: Ms. Meenakshi Sharma, Addl. A.G. with
Mr. Neeraj K. Sharma, Dy.A.G. for
respondents No.1 and 2.
Mr. S. C. Sharma, Advocate, for
respondent No.3.
Mr. V. S. Chauhan, Advocate, for
respondent No.7.
Tarlok Singh Chauhan, J. (oral).
The writ petition has been filed mainly with the following prayers:-
a) That impugned promotion-cum-posting orders issued vide Annexure P-7 and representation of the petitioner having been declined, vide Annexure P-9 may very kindly be quashed and set aside with direction to the respondents No. 1 to 3 to consider the case of the petitioner and 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.::: Downloaded on - 12/12/2008 05:32:47 :::HCHP 2
promote him as Grade-III Officer prior in time than his junior after modifying Annexure P-10 with all consequential benefits of pay, seniority etc. etc.
b) That procedure prevalent in the respondent bank with .
respect to writing of ACRs by the Managing Director of the bank, who has no occasion to see the working of the employees, in the case in hand petitioner, may very kindly be quashed and set aside and so also consequential action in the shape of DPC proceedings and result thereof, vide Annexure P-7 may very kindly be quashed and set aside.
2. The complaint of the petitioner, in short, is that while making promotions as Grade -III Officer, the respondent-Bank promoted his juniors solely on the basis of ACRs. The only reason for not communicating the ACR to the petitioner as set forth in the reply by the respondent-Bank is that entry therein was "good" and, therefore, was not required to be communicated to the petitioner.
3. It is by now well settled that the gradings in the ACRs irrespective of whether they are "very good", "good", "average" or "poor" are required to be communicated to the employees working in government offices, statutory bodies, public sector undertakings or other State instrumentalities, where constitutional obligations and principles of natural justice and fairness apply. These gradings are required to be communicated within a reasonable period so that the employee concerned gets an opportunity of representation for improvement of his grading.
::: Downloaded on - 12/12/2008 05:32:47 :::HCHP 34. Here , it would be apposite to refer to the judgment rendered by the Hon'ble Supreme Court in Dev Dutt vs. Union of India and others, (2008) 8 SCC 725, wherein it was observed as .
under:-
9. In the present case the bench mark (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 rig ours 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.
10. Hence, in our opinion, the 'good' en try 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.
::: Downloaded on - 12/12/2008 05:32:47 :::HCHP 413. 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 bench mark or not. Even if there is no bench mark, 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.
14. 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 upgradation, and such a representation must be decided fairly and within a reasonable period by the concerned authority.
15. 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 upgradation, and this may subsequently adversely affect their chances of promotion (or get some other benefit).
::: Downloaded on - 12/12/2008 05:32:47 :::HCHP 516. 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 wou ld 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 bench mark 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.
17. 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 vs. Union of India (supra) that arbitrariness violates Article 14 of the Constitution.
18. Thus it is not only when there is a bench mark 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 ::: Downloaded on - 12/12/2008 05:32:47 :::HCHP 6 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.
.
22. It may be mentioned that communication of entries and giving opportunity to represent against them is particularly important on higher posts which are in a pyramidical structure where often the principle of elimination is followed in selection for promotion, and even a single entry can destroy the career of an officer which has otherwise been outstanding throughout. This often results in grave injustice and heart-burning, and may shatter the morale of many good officers who are superseded due to this arbitrariness, while officers of inferior merit may be promoted.
23. In the present case, the action of the respondents in not communicating the 'good' entry for the year 1993 -94 to the appellant is in our opinion arbitrary and violative of natural justice, because in substance the `good' entry operates as an adverse entry (for the reason given above).
37. 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 concerned authority, and the concerned authority 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 representa tion 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.
::: Downloaded on - 12/12/2008 05:32:47 :::HCHP 738. We, however, make it clear that the above directions will not apply to military officers because the position for them is different as clarified by this Court in Union of India vs. Major Bahadur Singh 2006 (1) SCC 368. But they will apply to .
employees of statutory authorities, public sector corporations and other instrumentalities of the Sta te (in addition to Government servants).
5. The judgment in Dev Dutt's case (supra) was delivered by two Judges of Hon'ble Supreme Court and the same, in turn, was thereafter affirmed by three Hon'ble Judges in Abhijit Ghosh Dastidar vs. Union of India and others, (2009) 16 SCC 146 and thereafter, by three Hon'ble Judges in Sukhdev Singh vs. Union of India and others, (2013) 9 SCC 566.
6. Similar reiteration of law can be found in subsequent judgment delivered by the Hon'ble Supreme Court in Prabhu Dayal Khandelwal vs. Chairman, Union Public Service Commission and others, (2015) 14 SCC 427.
7. In view of the settled legal position and further in view of the parties being ad idem that the petitioner could not have been denied promotion solely on the basis of ACR, which admittedly had not been communicated to him, the further question that now arises is that as to what relief can be granted to the petitioner in such like cases.
8. Answer to this question is also found in Dev Dutt's case (supra), wherein the Hon'ble Supreme Court directed the respondent ::: Downloaded on - 12/12/2008 05:32:47 :::HCHP 8 therein to communicate the entry in the ACR to the appellant therein so as to enable him to make representation against the entry in the ACR and thereafter, in case the appellant was found fit for promotion .
then the same was ordered to be granted to him from the due date along with arrears of pay along with interest @ 8% per annum.
9. This court is also bound by the ratio laid down in Dev Dutt's case. Therefore, the instant writ petition is allowed and the petitioner is permitted to make a representation to the respondent-
Bank and in case the same is filed within a period of two weeks from the date of receipt of a copy of this judgment, then the same shall be decided as expeditiously as possible by the respondent-Bank and in no event later than 15.10.2017 and in case the petitioner gets selected for promotion retrospectively, he would be given arrears of pay along with interest @ 8% per annum till the date of payment.
10. The writ petition is disposed of in the aforesaid terms, leaving the parties to bear their own costs. Pending application(s), if any also stands disposed of.
September 6, 2017 (Tarlok Singh Chauhan)
(pankaj) Judge
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