Himachal Pradesh High Court
Himachal Pradesh State Electricity ... vs Shri Prem Chand on 11 June, 2019
Bench: Dharam Chand Chaudhary, Jyotsna Rewal Dua
1
HO'BLE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CWP No.645 of 2018
Decided on: June 11, 2019
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Himachal Pradesh State Electricity Board ..........Petitioner
Versus
Shri Prem Chand ........Respondent
_________________________________________________
Coram:
The Hon'ble Mr. Justice Dharam Chand Chaudhary,
Acting Chief Justice
The Hon'ble Ms. Justice Jyotsna Rewal Dua, J.
Whether approved for reporting?1 Yes.
For the petitioner : Mr. T.S. Chauhan, Advocate.
For the respondents : Mr. Sanjeev Bhushan, Sr. Advocate with Ms. Abhilasha Kaundal, Advocate.
Jyotsna Rewal Dua, Judge (Oral).
Dispute in this matter pertains to un- communicated, adverse Annual Confidential Reports (ACRs) and their effect on further promotion of a public servant.
2(i). Respondent filed Civil Writ Petition (No.10741/ 2012) in this Court, praying for promotion to the post of 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 28/09/2019 23:25:00 :::HCHP 2Assistant Engineer (Electrical) from the date his juniors were promoted, alongwith all consequential benefits, including seniority, pay, arrears etc. The ground for praying the relief .
was that the Electricity Board, petitioner herein, had denied the promotion to the respondent on the basis of un- communicated ACRs for the years 2007-08, 2008-09, 2009- 10 and 2010-11, wherein he was graded as "Good". It was the stand of the present respondent in the aforesaid writ petition that ACRs were graded 'Good' but they had civil consequences and therefore, were required to be communicated to him, so that he could have taken appropriate steps in that regard.
2(ii). Reply to this writ petition was filed by the Board, taking the defence that since the present respondent, in these ACRs, was assessed as "Good", therefore, there was no question of informing him about these ACRs. The fact that these ACRs were not communicated to the respondent, was not denied. It was also submitted in the reply that on account of these adverse entries in his ACRs, the respondent was not ::: Downloaded on - 28/09/2019 23:25:00 :::HCHP 3 promoted to the higher post and has been superseded by his juniors who were graded as "Very Good", in the Departmental Promotion Committee meeting which was .
convened on 08.06.2012 for promotion to the post of Assistant Engineer (Electrical).
2(iii). This writ petition (CWP No.10741/2012)was transferred to learned H.P. Administrative Tribunal, where it was registered as T.A. No.4096 of 2015 and decided on 15th May, 2017. The transferred application was allowed by learned Tribunal and directions were given to the Electricity Board (petitioner herein) to consider the case of the respondent for promotion to the post of Assistant Engineer by ignoring the un-communicated ACRs for the period 2007 to 2011, alongwith all consequential benefits.
3. Feeling aggrieved against this decision, the Electricity Board has preferred the instant writ petition.
4. The law in respect of un-communicated adverse entries and its effect on a public servant, is well settled by Hon'ble Apex Court in catena of judgments. In Dev Dutt ::: Downloaded on - 28/09/2019 23:25:00 :::HCHP 4 versus Union of India & Others, (2008) 8 SCC 725, it was held that every entry in a ACR of public servant must be communicated to the public servant within a reasonable .
period whether it is a poor, fair, average, "Good" or "Very Good" entry. The object of communication is to enable the employee to know about the assessment of his work and conduct by his superiors, enabling him to improve his work in judgment (supra):-
r to future. It is apt to reproduce Paras-16 and 18 of the "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" entires, 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 ::: Downloaded on - 28/09/2019 23:25:00 :::HCHP 5 "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.
18. 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."
6. In Abhijit Ghosh Dastidar versus Union of India and Others, (2009) 16 SCC 146, relying upon Dev Dutt's case (supra), it was held that non-communication of entries in the Annaul Confidential Report to a public servant have civil consequences affecting his chances of promotion and getting other benefits. Non-communication of adverse ACRs would ::: Downloaded on - 28/09/2019 23:25:00 :::HCHP 6 be violative of Article 14 of the Constitution. Para-8 of the judgment is reproduced as under:-
"8. Coming to the second aspect, that though the .
benchmark "very good" is required for being considered for promotion, admittedly the entry of "good" was not communicated to the appellant.
The entry of "good" should have been communicated to him as he was having "very good" in the previous year. In those circumstances, 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 armed forces), it has civil consequences because it may affect his chances of promotion or getting other benefits. Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution. The same view has been reiterated in the abovereferred decision (Dev Dutt case, SCC p.738, para 41) relied on by the appellant. Therefore, the entries "good" if at all granted to the appellant, the same should not have been taken into consideration for being considered for promotion to the higher grade. The respondent ::: Downloaded on - 28/09/2019 23:25:00 :::HCHP 7 has no case that the appellant had ever been informed of the nature of the grading given to him."
.
7. In Sukhdev Singh versus Union of India, (2013) 9 SCC 566, the larger Bench of Hon'ble Apex Court, relied and followed afore two judgments to hold that every entry in ACR must be communicated to the public servant and
8. to communication of only adverse entry is not enough.
Recently, in Rukhsana Shaheen Khan verus Union of India, Civil Appeal No.32 of 2013, decided on 28th August, 2018, it has been held in Para- 2 as under:-
"2. In view of the decision of this Court in Sukhdev Singh vs. Union of India & Ors. reported in (2013) 9 SCC 566, there cannot be any dispute on this aspect. This Court has settled the law that un-
communicated and adverse ACRs cannot be relied upon in the process."
9. It is the admitted case of the petitioner-Board that ACRs for the period 2007 to 2011, with grading "Good", were not communicated to the respondent and on the basis ::: Downloaded on - 28/09/2019 23:25:00 :::HCHP 8 of these very gradings, he was not promoted as Assistant Engineer (Electrical) and was superseded by his juniors with grading "very good". Applying the law, discussed above, no .
fault can be found with the impugned order dated 15th May, 2017, passed by learned H.P. Administrative Tribunal.
10. It has been brought to our notice that during the pendency of the present writ petition, in terms of the directions issued by this Court on 21st November, 2018, the petitioner-Electricity Board had convened a Review DPC and promoted the respondent as Assistant Engineer (Electrical) on regular basis (notionally) w.e.f. 01.10.2012 and as Sr. Executive Engineer(E) on regular basis (notionally) w.e.f.
31.08.2017 from the date of promotion of his immediate junior. Since we have upheld the order passed by learned Tribunal, the respondent will be entitled to all consequential benefits on actual basis.
::: Downloaded on - 28/09/2019 23:25:00 :::HCHP 911. In view of the observations made hereinabove, we find no merit in the instant writ petition and the same is .
accordingly dismissed, so also pending application(s), if any.
(Dharam Chand Chaudhary)
Acting Chief Justice
June 11, 2019
(Yashwant)
r to (Jyotsna Rewal Dua)
Judge
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