Central Administrative Tribunal - Delhi
Ms. Rasika Chaube vs Union Of India & Ors on 3 January, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 749/2012 ORDER RESERVED ON: 10.12.2012 ORDER PRONOUNCED ON: 03.01.2013 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MRS. MANJULIKA GAUTAM, MEMBER (A) Ms. Rasika Chaube, Joint Secretary and Financial Advisor, President Secretariat, Rashtrapati Bhawan, New Delhi R/o C-2/14, Radha Krishna Veedi, Presidents Secretariat, New Delhi. Applicant. (By Advocate Shri V.S.R. Krishna) Versus Union of India & Ors. Through: 1. The Secretary, Ministry of Defence (Finance), South Block, New Delhi. 2. The Secretary, Department of Personnel & Training, Ministry of Personnel, Training and Public Grievances, North Block, New Delhi. 3. The Controller General of Defence Accounts, Ulan Batar Road, Palam, Delhi Cantt, Delhi-110010. 4. The Secretary, Union Public Service Commission, Dholpur House, Shahjahan Road, New Delhi. Respondents. (By Advocate Shri R.N. Singh for Respondents 1 to 3, Mrs. Bindra Rana and Mrs. Varun Sharma for Respondent No.4) O R D E R
Shri G. George Paracken:
The applicant is aggrieved by the alleged inaction on the part of the respondents in not considering her request for review of her position in the panel for promotion as Junior Administrative Grade (`JAG for short) while conducting the review Departmental Promotion Committee (`DPC for short) on 05.01.2012 despite the fact that the competent authority, namely, the Controller General of Defence Accounts (`CGDA for short) has expunged her Very Good ACR gradings for the period 1991-92 to 1993-94 treating them as `non est and thereby retaining the gradings given by the Reporting Officer(s) as `Outstanding.
2. The applicant in this case is an officer of the Indian Defence Accounts Service (`IDAS for short) of 1986 batch. She was superseded at the time of her promotion as JAG of the IDAS in 1995 by the DPC held in the Union Public Service Commission (`UPSC for short) on 19.12.1995. She was assessed as `Very Good while four officers junior to her in the seniority list were assessed as `Outstanding by virtue of which they were placed in the higher positions and she was relegated to Serial No. 5 in the panel. This supersession was in accordance with the DOP&T O.M. No. 22011/5/86-Estt (D) dated 10.04.1989. Subsequently, the DOP&T modified the aforesaid O.M. vide DOP&T O.M. dated 08.02.2002 stating that there should be no supersession in the matter of selection (merit) promotion at any level.
3. According to the applicant, she had the access for the ACR gradings for the aforesaid years only in the year 2009 by invoking the provisions of the Right to Information Act (RTI), 2005. She made the Annexure A-3 representation dated 19.11.2009 stating that the reviewing officer has committed irregularities and illegalities by downgrading her `Outstanding ACRs gradings, given by two different reporting officers, to `Very Good in three ACRs of 1991-92 to 1993-94) without assigning any reasons. She has, therefore, made a request to restore her seniority and to ignore the uncommunicated ACRs which despite being above the bench mark had impacted her adversely. As no positive action was taken on her request, she obtained copy of the minutes of the DPC meeting held on 19.12.1995 under the RTI Act and she came to know that Outstanding gradings given to her by the Reporting Officer for the years 1991-92 to 1993-94 have been downgraded to Very Good and Good by the Reviewing Officer by simply making unsubstantiated generic remarks. As regards the ACR for the year 1994-95 is concerned, she stated that when she had shifted to FA to OSD, Mumbai, her channel of reporting was wrong and her ACR was not accepted by the CGDA. In fact, she had not been assessed by her departmental officers. She has, therefore, requested the competent authority to expunge the ACR gradings of the years 1991-92 to 1993-94 given by the Reviewing Officer and to treat the ACR of 1995-96 as void. She has also requested to hold a review DPC. The competent authority, vide its letter dated 19.11.2009, agreed with her request and expunged the remarks of the Reviewing/Accepting officer in aforesaid three ACRs (1991-92 to 1993-94) thus allowing the `Outstanding gradings in those three ACRs to prevail and also declared the ACR of 1994-95 as non est. The relevant part of the said letter is as under:-
Period of CR Decision of CGDA 01.04.1991 to 31.03.1992 01.04.1992 to 31.03.1993 01.04.1993 to 30.06.1993 01.07.1993 to 31.03.1994 01.04.1994 to 31.03.1995 Since the laid down reporting channel has not been followed for writing of the CR, hence the report for the year may be considered as void.
The aforesaid decision was communicated to the applicant by the Annexure A-4 letter dated 30.11.2009.
4. Since the competent authority has altered the positions of her ACRs gradings, a decision for holding a review DPC was taken by the Ministry of Defence (Finance) with the UPSC and the DOP&T so that her case is taken to a logical conclusion i.e. for review and restoration of her inter se panel position at the JAG level. The DOP&T took the stand that since no instructions have been issued by them to support the action of the competent authority in rectifying/expunging the ACRs for the period 1991-92 to 1993-94, no review DPC could be held in the matter. According to them, existing instructions are only with regard to the `Adverse below bench mark entries and when they are upgraded, review DPCs are held. However, they have agreed to hold a review DPC to the limited extent by ignoring the ACR of 1994-95 which was treated by the competent authority as non est. Accordingly, a review DPC was held by the UPSC on 05.01.2012 and the Minutes of the same obtained by the Applicant is at Annexure A-1 of this OA and its recommendations were also conveyed to the applicant vide Annexure A-2 CGDAs letter dated 20.01.2012 stating that the review DPC reconsidered/re-examined her case but not recommended any change in the proceedings of the DPC held on 19.12.1995.
5. The applicant challenged both the aforesaid Minutes dated 5.1.2012 and the decision of the Respondent dated 20.1.2012 in this Original Application and sought the following reliefs:-
(i) To call for the records of the case;
to quash and set aside the impugned order dated 20.01.2912 as also the minutes of the review DPC dated 05.01.2012 being illegal and bad in law;
to direct the respondents to call for a review DPC and to consider the case of the applicant for promotion to JAG grade by considering the modified ACR gradings for the period 1991-92 to 1993-94 consequent to the decision of the competent authority dated 30.11.2009 which declares the Very Good ACR gradings given by the review/accepting authority as non est;
to grant to the applicant all consequential benefits arising as a result of the recommendations of the review DPC including placement in proper place at the level of JAG and thereafter; and to grant any other relief or reliefs as may be deemed fit and proper under the circumstances of the case.
6. The contentions of the applicant are:
(i) Her case has not been validly reconsidered and re-examined by the review DPC constituted for the purpose of reviewing the order of her placement in the panel for promotion to JAG, in its meeting held on 5.1.2012. The review DPC simply considered the ACR for 1989-90 in place of the non est ACR of 1994-95 and again assessed her as Very Good. It took no cognizance of the expunged ACRs for the period 1991-92 to 1993-94 with the result that the review DPC did not recommend any change in the order of the panel for promotion to JAG. The review DPC should have in all fairness considered the expunged Outstanding gradings in the ACRs for the years 1990-91 to 1993-94 as only they survive the post order dated 30.11.2009 passed by the competent authority instead of arbitrarily and illegally considering the earlier ACR gradings Very Good which have no legal sanctity. The decision of the review DPC violates the DOP&T OM dated 10.4.1989 which stipulates convening of a review DPC and considering the expunged ACR gradings when adverse ACRs are expunged. In the present case the Very Good ACRs had the same adverse impact on the applicant as that of an Adverse ACR whereby the Applicant lost inter se seniority and was superseded despite getting promoted. Hence once expunged, the ACR gradings Outstanding should have been considered by the review DPC.
(ii) The stand taken by the Department of Personnel & Training in the matter is illegal and arbitrary. According to them, there are no instructions issued by them to support the action taken by the competent authority for review of ACRs for the years 1991-92 to 1993-94. Hence no review DPC is justified on account of the upgradation of the ACRs for the years 1991-92 to 1993-94. The aforesaid contentions are totally illegal, arbitrary, discriminatory and mala fide for the reason that instructions exist and for reviewing and expunging ACRs with adverse entries. In her case, Very Good ACR gradings have had the same adverse impact on her career of the officer as that of an Adverse ACR grading and qualify as adverse entries in the light of the pronouncement of the Apex Court. Hence once the illegalities in the ACRs were highlighted and represented against by the Applicant the competent authority correctly rectified the same after following the procedure. DOP&T, at no stage, has stated that the Competent Authority has violated any instructions by expunging the ACR gradings of 1991-92 to 1993-94. It simply reiterates that there are no instructions issued by the DOP&T to support the action of the Competent Authority despite every attempt being made by the MoD (Fin) to justify that the Very Good ACRs which have been expunged may not be adverse in the conventional sense but they had the same adverse impact on the career of the applicant.
(iii) Further, the adverse ACR grading could have been represented against by the applicant for redressal prior to the DPC and promotion but the said opportunity was denied to her at the time of her supersession in 1995, in complete violation of the principles of natural justice, since her ACRs were assessed as Very Good. It was only in 2009 that she got an opportunity under the RTI Act to access her ACRs, point out the glaring irregularities in her ACRs tp seek redressal from the Competent Authority and the Competent Authority, after due consideration, rectified the irregularities.
(iv) The review DPC which met on 5.1.2012 was in grave error in observing that holding of review DPC is not justified on account of upgradation of ACRs for the period 1991-92 to 1993-94, which is not provided in any instruction. The UPSC, has been guided by the illegal and malafide advice of the DOP&T and have taken into consideration the earlier ACRs gradings of Very Good for the years 1991-92 to 1993-94 during the review DPC held ion 5.1.2012 when those ACRs gradings have no validity in law after the same have undergone a change in view of the decision of the competent authority.
(v) Lastly, according to the Applicant, the DPC meeting held on 05.01.2012 was not constituted in accordance with the statutory Recruitment Rules dated 30.09.1958 as the Controller General of Defence Accounts (CGDA) was not associated with it. The reason given in the minutes for not associating CGDA in the DPC is that on that date no incumbent was holding the post of CGDA on regular basis. The said reasoning is totally wrong and erroneous since on the date of DPC, i.e., 05.01.2012, Shri Virendra Dewan was holding charge of the post of CGDA, abbeit on ad hoc basis, for all purposes and hence to disassociate him from the meeting of DPC would make the entire proceedings ab initio null and void.
7. Respondent No.4-UPSC in its reply has made the preliminary submissions that it is an advisory body set up under Article 315 of the Constitution and they have the constitutional obligation to ensure that all the selections made for regular appointments to the services/posts of the Union of India, falling under its purview are made strictly in accordance with the statutory recruitment rules and the relevant instructions issued by the Govt. of India from time to time. As regards the facts of the case are concerned, they have submitted that the applicant was considered for promotion to JAG of IDAS for the year 1995-96 at Serial No. 2 under relaxation of RRs by the DPC held on 19.12.1995 and assessed as Very Good. The method of selection as prevailing at the time of original DPC was `grading, according to which all officers in the consideration zone were assessed as `Outstanding, `Very Good, `Good, `Average and `Unfit. The officers assessed as `Outstanding were placed on top of the panel, followed by those who were assessed as `Very Good. The Applicant was assessed as Very Good. Since, the Bench-mark in the case was Very Good, she was included in the panel for promotion for the year 1995-1996 at S.No.05 superseded by four officers who were assessed as `Outstanding.
8. The Controller General of Defence Accounts in its reply has submitted that the Ministry of Defence, on 08.01.2010, forwarded a proposal for holding a review DPC to reconsider the applicant for promotion to JAG of IDAS for the year 1995-96 by reviewing the proceedings of the DPC held on 19.12.1995 due to upgradation of her ACRs for the years 1991-92, 1992-93 and 1993-94 from `Very Good to `Outstanding and declaration of ACR for the year 1994-95 as `non-est. They have further stated that while her ACRs for those three years were graded as `Outstanding by three different Reporting Officers, they were downgraded to `Very Good/Good by the very same Reviewing Officer without assigning any reasons and, therefore, the remarks/grading of the Reviewing/Accepting Authorities in respect of these ACRs were to be treated as `non est and the grading given by the reporting officers as `Outstanding shall prevail. Further, since the ACR for the year 1994-95 was not written as per the laid down reporting channel, it was also to be treated as `void. The aforesaid proposal of the Ministry of Defence was examined in the Commissions office in detail and sought clarifications in the matter. According to them, after the judgment of the Honble Supreme Court in the case of Dev Dutt Vs. Union of India & Ors. (2008 (8) SCC 725), instructions have been issued vide DOP&Ts OM No. 21011/1/2005-E.IV (P) (Pt.II) dated 14.05.2009, to the effect that the full APAR including the overall grading and assessment of integrity shall be communicated to concerned officer to give him an opportunity to make any representation against the entries and final gradings given in the report, and this new system was made applicable prospectively only, i.e., with effect from the reporting period 2008-09 initiated after 01.04.2009. As such disclosure of ACR gradings to the concerned officer for any period prior to 2008-09 does not seem permissible which by itself implies that no representation against such gradings, if disclosed, would be entertainable at the end of the Administrative Ministry. The UPSC has, therefore, felt that the Department was not right in communicating the ACRs for the period 1990-91 to 1995-96 and then considering her representation. Further, they have sought the advice of the DOP&T whether there was any limitation period for making representation against ACRs particularly in respect of a settled DPC case. The UPSC has also argued that the very same set of ACRs in which some infirmities have now been found out by the Department were also considered in December, 1995 by the DPC as per the guidelines prevailing at that point of time, but did not find any infirmities therein. Further, they have submitted that the DOP&T, vide its ID dated 15.07.2010 clarified that the action taken by the Ministry of Defence is not in consonance with the instructions issued by DOP&T, question of review DPC does not arise. However, the Ministry of Defence requested the Commission to hold the review DPC on the basis of the fresh clarifications dated 15.03.2011 of the DOP&T which is as under:
3. The matter has been examined in this Department. In terms of instructions on preparation of ACRs only the officer(s) who supervised the work of the officer to be reported upon for a minimum period of three months may make remarks therein. If the ACR in question had been prepared in violation of the laid down channel of supervision in the instructions of the concerned Department, the CR may be treated as non est. Hence, it may be presumed that some procedural irregularities have been committed by the Department during the DPC meeting by considering the non est ACR for the year 1994-95. As such, a Review DPC could be conducted by ignoring the said ACR which may be treated as non est. However, whether the Review DPC will have an effect on the findings of the earlier DPC held in December, 1995 in the UPSC is to be decided by the Review DPC. Necessary action may, therefore, be taken by the Department accordingly.
9. Since the DOP&T has agreed with the Ministry to declare the ACR of the applicant for the year 1994-95 as `non est and nothing was mentioned regarding upgradation of ACRs, Ministry of Defence was requested to obtain concurrence of the DOP&T in regard to upgradation of ACRs for the years 1991-92, 1992-93 & 1993-94 vide letter No. 1/33 (31)/2011-AP-3 dated 30.05.2011. Accordingly, the Ministry of Defence again took up the issue of upgradation of ACRs for the years 1991-92, 1992-93 & 1993-94 and consequent holding of Review DPC with the DOP&T.
10. The UPSC has submitted that consequent upon treating the ACR of the applicant for the year 1994-95 as `non est, it became necessary to review the proceeding of the DPC held on 19.12.1995 for the year 1995-96 to reconsider her for promotion as JAG of IDAS as there is material change in her ACRs in the consideration matrix and according to the existing instructions of DOP&T on DPC matters, her ACR for the year 1989-90 is required to be considered in place of `non est ACR 1994-95. However, the assessment in respect of the ACRs for the eyars 1990-91, 1991-92 and 1993-94 as made by the original DPC on the basis of pre-upgraded ACRs shall remain unchanged as DOP&T do not agree with the upgradation of these ACRs. Accordingly, a review DPC was held on 05.01.2012 to reconsider and re-examine her character rolls for promotion to JAG of IDAS for the year 1995-96 at S. No. 02 as considered by the original DPC held on 19.12.1995, by considering the ACR for 1989-90 in place of `non est ACR 1994-95. The Review Committee on re-examining her character rolls assessed her as `Very Good. Accordingly, the Review Committee did not recommend any change in the proceedings of the DPC held on 19.12.1995 as she was already assessed as `Very Good by the original DPC. The relevant part of the minutes of the aforesaid review DPC is reproduced as under:-
(i) Since DOP&T had agreed with the Ministry to declare the ACR of Ms. Rasika Chaube for the year 1994-95 as non-est and nothing was mentioned regarding upgradation of ACRs, Ministry of Defence was requested to obtain concurrence of DOP&T in regard to upgradation of ACRs for the years 1991-92, 1992-93 and 1993-94. Accordingly, the Ministry of Defence again took-up the issue of upgradation of ACRs for the years 1991-92 to 1993-94 and consequent holding of Review DPC with the DOP&T.
(ii) The Department of Personnel & Training vide their ID dated 9.9.2011 have clearly opined that the officer though meeting the bench mark for promotion was superseded by virtue of some of other eligible officers having been assessed as outstanding by the DPC as per the then DPC rules in the matter of promotion. As such, the holding of review DPC is not justified on account of upgradation of ACRs for the period 1991-92 to 1993-94 which is not provided in any instructions.
11. Learned counsel for the Respondents Shri R.N. Singh has also submitted that the review DPC is an independent body and its decision is final in all respects. He has also argued that at the relevant time, i.e., when the Original DPC was held on 19.12.1995, there were no instructions to communicate any ACRs other than those contained adverse remarks. In this regard, he has referred to the judgment of the Supreme Court in Union of India & Anr. Vs. S.K. Goel & Ors. (AIR 2007 SC 1199) wherein it has been held as under:
23. In the instant case, respondent No.1 had received no adverse remarks and had rather been graded at the level of the prescribed bench mark of 'above average', therefore, as rightly pointed out by learned Additional Solicitor General, there was neither any onus nor requirement upon the appellant to have communicated the ACR entry to respondent No.1.
24. At the time of hearing, the original record was placed before us. We have carefully perused the same. The DPC, in our view, followed the prescribed norms as also applied its discretion vested in it to determine the comparative merit of the eligible officers and thereafter made recommendations in order of merit. There was thus no occasion or justification for interference in the order passed by the appellants, as upheld by the Tribunal.
25. Learned senior counsel appearing for respondent No.1 placed strong reliance on the judgment of this Court in U.P. Jal Nigam(supra). In our opinion, the said decision is entirely distinguishable on facts and circumstances from the case on hand and is wrongly been relied upon by the High Court. In the U.P. Jal Nigam's case, the officer concerned Shri P.C. Jain had been downgraded at certain point of time. Before the High Court, it had been alleged that downgrading of entry could not be termed as adverse and that the same should be communicated. The U.P. Jal Nigam Service Rules provided for communication of adverse entries. In this case, downgrading had been done by comparison and there appears to be no reason recorded for such downgrading. However, in the instant case, the downgrading still meets the bench mark and therefore, merely because certain persons have been assessed by the DPC to be better than the respondent, did not imply that he should have been communicated his grading.
26. In our opinion, the judgment of the Tribunal does not call for any interference inasmuch as it followed the well settled dictum of service jurisprudence that there will ordinarily be no interference by the courts of law in the proceedings and recommendations of the DPC unless such DPC meetings are held illegally or in gross violation of the rules or there is mis-grading of confidential reports. In the present case, the DPC had made an overall assessment of all the relevant confidential reports of the eligible officers who were being considered. The DPC considered the remarks of the reviewing officers. There was clear application of mind. Respondent No.1 did fulfill the bench mark. Hence, the impugned direction of the High Court ought not to have been issued as the same will have the impact of causing utter confusion and chaos in the cadre of the Indian Revenue Service, Customs and Central Excise Service.
12. We have heard the learned counsel for the applicant Shri V.S.R. Krishna, the learned counsel for the Respondents 1-3 Shri R.N. Singh and the learned counsel for the Respondent No.4 Mrs. Bindra Rana. The undisputed facts in this Original Application are that while considering the cases of Applicant and 4 of her juniors by the original DPC for promotion as JAG of IDAS on 19.12.1995, the grading of the applicant taken into consideration by them for three relevant years (1991-92, 1992-93 and 1993-94) was Very Good. Since 4 of her juniors were having their higher grading as Outstanding in the corresponding ACRs, they were allowed to supersede her without any notice to her. In State of Orissa Vs. Dr. (Miss) Binapani Dei & Ors. (AIR 1967 SC 1269), the Supreme Court held that even an administrative order which involves civil consequences must be made consistently with the rules of natural justice. The person concerned must be informed of the case, the evidence in support thereof supplied and must be given a fair opportunity to meet the case before an adverse decision is taken. Again in Canara Bank & Ors. Vs. Debasis & Ors. (2003 (4) SCC 557), the Apex Court observed that the adherence to the principles of natural justice is of supreme importance in any administrative action involving civil consequences, is in issue. Similarly, the Apex Court again in its judgment in Tajshree Ghag Vs. Prakash P. Patil (2007 (2) SCC L&S 451) held that it is a well settled that where executive order results in civil consequences, principles of natural justice are required to be complied with, prior thereto. The Apex Court has also observed in the said judgment as under:
No doubt, in the absence of special provisions as to how the person who is to decide is to proceed, law will imply no more than that the substantial requirement of justice shall not be vitiated.
Undisputedly, the applicant was never given any such opportunity before she was visited with the aforesaid civil consequence of supersession. However, we agree that the DPC cannot be accused of any such dereliction/inaction at this stage because there were no extant rules or instructions to be followed at the relevant time. But the other equally or more important unignorable fact is that the aforesaid grading of Very Good of the applicant for all those 3 years have been expunged by the Competent Authority and upgraded as Outstanding at par with her juniors though the order of expunction and upgradation was issued much after the date of the said DPC. Therefore, the factual position which is emerging is not only that superseding of the applicant by her juniors was done in violation of the principles of natural justice but also that the `Very Good gradings in her ACRs for the years 1991-92, 1992-93 and 1993-94 have become non est. But the DOP&T was not ready to accept the aforesaid expunctions and upgradings made by the Competent Authority only on the ground that they have not been done on the basis of any existing orders/instructions issued by them to communicate the ACRs which do not contain any adverse remarks. However, at the same time, they have readily agreed to hold the Review DPC on the limited ground that the ACR for the year 1994-95 was non-est and in such cases there are instructions for holding the Review DPC. In other words, DOP&Ts objection to hold the Review DPC to reconsider the ACRs for the years 1991-92, 1992-93 and 1993-94 is only because they, being the nodal Ministry for the purpose, have not issued any instructions in that regard but they have not denied the actual fact that the Competent Authority have upgraded the Applicant as Outstanding for three years and her CR dossiers have thus been rectified accordingly. The UPSC also, in a mechanical manner, followed the stand taken by the DOP&T in the matter. In our considered opinion, the approach to the issue by both DOP&T as well as UPSC is not positive, rather it is arbitrary. In the above facts and circumstances of the case, justice could not have been denied to the applicant on the technical ground that there were no written instructions in the matter. Equity and fair play demand that decision of the administrative authority shall not result in injustice to employee even if it is technically correct. As held by the Apex Court in S. Nagraj Vs. State of Karnakata & Ors. (1993 (Suppl.4) SCC 595) Justice is a virtue which transcends all barriers and neither the rule of procedure nor technicalities of law can stand in its way.
13. In the present case admittedly, the applicant was graded Outstanding for all the three years referred to above by the Reporting Officers but it was tonned down to Very Good by the Reviewing/Accepting Officers. In the above circumstances, if the applicant had any opportunity to know the final gradings given to her in her ACRs for those three years and if she had been given opportunities to make representations against them to the Competent Authority as in the case of ACRs containing adverse remarks for which instructions have been issued by the DOP&T that on receipt of such representations, the departments were required to consider them in accordance with the principles of natural justice and if they are found to have merit, the lower gradings already given also could be upgraded in time, as in the case of adverse remarks, after expunging the earlier remarks. Therefore, on merit, the Applicant has good and sufficient reasons to seek the review of her ACRs for the aforesaid 3 years by the Review DPC. However, the possible objection by the DOP&T and the UPSC can be that it is for the first time in Dev Dutts case (supra) it was held that though an ACR grading may not be adverse as conventionally understood, but if it is below the benchmark prescribed for promotion to a higher post, having an adverse impact on the entitlement to be promoted, it would be akin to an adverse remark. But the fact of the matter is that the aforesaid judgment of the Apex Court is based on well settled principle that Article 14 of the Constitution which strikes at arbitrariness in State action and ensures fairness and equality of treatment. It requires that State action must not be arbitrary but must be based on some rational and relevant principle which is non-discriminatory, principles of reasonableness and rationality being essential elements of equality. Moreover, the applicants case itself is substantially covered by the aforesaid judgment, the relevant part of which reads as under:
3. The appellant was in the service of the Border Roads Engineering Service which is governed by the Border Roads Engineering Service Group 'A' Rules, as amended. As per these rules, since the appellant was promoted as Executive Engi-neer on 22.2.1988, he was eligible to be considered for promotion to the post of Superintending Engineer on completion of 5 years on the grade of Executive Engi-neer, which he completed on 21.2.1993. Accordingly the name of the appellant was included in the list of candidates eligible for promotion.
4. The Departmental Promotion Committee (DPC) held its meeting on 16.12.1994. In that meeting the appellant was not held to be eligible for promotion, but his jun-iors were selected and promoted to the rank of Superintending Engineer. Hence the appellant filed a Writ Petition before the Gauhati High Court which was dismissed and his appeal before the Division Bench also failed. Aggrieved, this appeal has been filed by special leave before this Court.
5. The stand of the respondent was that according to para 6.3(ii) of the guidelines for promotion of departmental candidates which was issued by the Government of India, Ministry of Public Grievances and Pension, vide Office Memorandum dated 10.4.1989, for promotion to all posts which are in the pay scale of Rs. 3700-5000/-and above, the bench mark grade should be 'very good' for the last five years before the D.P.C. In other words, only those candidates who had 'very good' entries in their Annual Confidential Reports (ACRs) for the last five years would be considered for promotion. The post of Superintending Engineer carries the pay scale of Rs. 3700-5000/- and since the appellant did not have 'very good' entry but only 'good' entry for the year 1993-94, he was not considered for promotion to the post of Superin-tending Engineer.
6. The grievance of the appellant was that he was not communicated the 'good' entry for the year 1993-94. He submitted that had he been communicated that entry he would have had an opportunity of making a representation for upgrading that entry from 'good' to 'very good', and if that representation was allowed he would have also become eligible for promotion. Hence he submits that the rules of natural justice have been violated.
7. In reply, learned counsel for the respondent submitted that a 'good' entry is not an adverse entry and it is only an adverse entry which has to be communicated to an employee. Hence he submitted that there was no illegality in not communicating the 'good' entry to the appellant.
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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 rigours 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' entry 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 appel-lant 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 re-spondent are distinguishable.
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21. Learned counsel for the respondent also relied upon the decision of this Court in Union of India & Ann vs. S. K. God & Ors., AIR 2007 SC 1199 and on the strength of the same submitted that only an adverse entry need be communicated to the incumbent. The aforesaid decision is a 2-Judge Bench decision and hence cannot prevail over the 7-Judge Constitution Bench decision of this Court in Maneka Gandhi vs. Union of India (supra) in which it has been held that arbitrariness violates Article 14 of the Constitution. Since the aforesaid decision in Union of India vs. S.K. Goel (supra) has not considered the aforesaid Constitution Bench decision in Maneka Gandhi's case (supra), it cannot be said to have laid down the correct law. Moreover, this decision also cannot be treated as a Euclid's formula since there is no detailed discussion in it about the adverse consequences of non-communication of the entry, and the consequential denial of making a representation against it.
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 pyra-midical 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 super-seded 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).
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44. We, therefore, direct that the 'good' entry be communicated to the appellant within a period of two months from the date of receipt of the copy of this judgment. On being communicated, the appellant may make the representation, if he so chooses, against the said entry within two months thereafter and the said representation will be decided within two months thereafter. If his entry is upgraded the appellant shall be considered for promotion retrospectively by the Departmental Promotion Com-mittee (DPC) within three months thereafter and if the appellant gets selected for promotion retrospectively, he should be given higher pension with arrears of pay and interest @ 8% per annum till the date of payment.
14. Apart from the minor difference between the present case and Dev Dutts case (supra), in both cases, there were adverse effects on the applicant/appellant. In the present case, while the applicant was superseded by three of his junior colleagues, in Dev Dutts case (supra), the Appellant was not even considered for promotion. In Dev Dutts case (supra), the Apex Court has, therefore, directed the respondent to communicate the Good entry given to the appellant to enable him to make a representation to the Competent Authority and if his entry was upgraded, to give him promotion retrospectively by the DPC. In the present case, the Competent Authority has already, on the representation of the applicant who came to know about her supersession, in reply to her query under the Right to Information Act, 2005, upgraded her as Outstanding but the DPC refused to consider her case on the arbitrary ground that the DOP&T has not issued any instructions for the purpose.
15. In our considered view, the stand taken by the DOP&T that in the absence of instructions, the Competent Authority could not have considered the request of the Applicant for expunction of the grading given to her in the earlier ACRs which are not adverse, cannot stand the test of law in the face of the aforesaid judgment of the Apex Court in Dev Dutts case as well as the Right to Information Act, 2005 providing more transparency in governance. With the introduction of the aforesaid Act, the significance of any instructions by the DOP&T to communicate the entries has been substantially reduced. Today, the copies of the entire ACRs can be obtained under the aforesaid Act and representations can be given by the Government servants and they are to be considered by the Competent Authority as a matter of right of the employee.
16. We, therefore, allow this OA and quash and set aside the impugned order dated 20.01.2912 as also the minutes of the review DPC dated 05.01.2012 being illegal, arbitrary and violative of Article 14 of the Constitution. We also direct the respondents to call for a review DPC and to consider the case of the applicant for promotion to JAG grade from the date her juniors have been promoted by considering the modified ACR gradings for the period 1991-92 to 1993-94 consequent to the decision of the competent authority dated 30.11.2009 declaring the Very Good ACR gradings given by the review/accepting authorities as non-est, with all consequential benefits including restoration of her position in the panel for promotion as JAG retrospectively in accordance with the law. However, in case of the applicants promotion from the aforesaid date, the arrears of pay and allowances in the higher grade payable to her shall be restricted from the date of the first Review DPC held on 05.01.2012. The Respondents shall comply with the aforesaid directions, within a period of 2 months from the date of receipt of a copy of this order. There shall be no order as to costs.
( MANJULIKA GAUTAM) (G. GEROGE PARACKEN)
MEMBER (A) MEMBER (J)
`SRD