Jharkhand High Court
Shiva Mohan Jha vs Chairman-Cum-Managing Director on 26 September, 2023
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Navneet Kumar
W.P.(S) No.4924 of 2022
-1-
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No.4924 of 2022
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Shiva Mohan Jha, aged about 77 years, son of Late
Nathuni Jha, resident of LIG R-80, H.H. Colony, P.O.-
Doranda, P.S.-Argora at Harmu Colony, District-Ranchi
(Jharkhand). ... ... Petitioner
Versus
1. Chairman-cum-Managing Director, Bharat Sanchar
Nigam Ltd. Corporate Office, P.O. & P.S. - New Delhi,
Delhi-110001.
2. The Chief General Manager, Telecommunication-cum-
chairman of the Screening Committee, BSNL, Jharkhand
Telecommunication Circle, P.O. Neori, Vikas Vidyalaya,
P.S. B.I.T. Mesra, District-Ranchi-835217.
3. The General Manager (Personnel), BSNL Corporate
Office, PO & PS-New Delhi-110001.
4. Dy. General Manager (P), BSNL Corporate Office, PO &
PS-New Delhi-110001.
5. Assistant General Manager (Legal), Office of C.G.M.T.,
BSNL, Jharkhand Telecommunication Circle, P.O. Neori,
Vikas Vidyalaya, P.S. B.I.T. Mesra & District-Ranchi-
835217. ... ... Respondents
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CORAM :HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the Petitioner : In Person
For the respondents : Mr. Prabhat Kumar Sinha, Advocate
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C.A.V. on 04.09.2023 Pronounced on 26.09.2023
Per Sujit Narayan Prasad, J.
1. The writ petition filed under Article 226 of the Constitution of India is directed against the order dated 19.07.2022 passed by learned Central Administrative Tribunal, Patna Bench, Circuit Bench, Ranchi in OA/051/00147/2019 by which the order dated 18.05.2009 communicated on 25.05.2009 wherein the respondents upheld their decision dated 22.02.2005 in respect of W.P.(S) No.4924 of 2022 -2- adverse entry in the applicant's ACR for the year 2000-01. Further, the direction to expunge the adverse entry as communicated vide letter dated 27.03.2002 to the extent upheld in the order dated 22.02.2005 and to treat the ACR as "Good" in the light of representation dated 21.03.2005 as also the decision dated 25.05.2009 wherein the respondents have rejected I.D.A. upgradation scale to the applicant has been refused to be interfered with by dismissing the original application.
2. The brief facts of the case, as per the pleadings made in the original application, which are required to be enumerated, reads hereunder as :-
The petitioner was appointed initially as Engineering Supervisor in the Post and Telegraph Department of Government of India on 01.09.1965. The designation of Engineering Supervisor was subsequently changed as Junior Engineer and Junior Telecom Officer.
Thereafter, the post and telegraph department was subsequently split-up into two separate departments, i.e. Department of Post & Department of Telecommunication.
The service of the petitioner was transferred to the Department of Telecommunication.
3. It is the further case of the writ petitioner that when Mahanagar Telephone Nigam Limited was formed, the petitioner's service was transferred to M.T.N.L. (Mahanagar W.P.(S) No.4924 of 2022 -3- Telephone Nigam Limited) for a short period from 16.08.1998 to 27.11.1998. Thereafter on 01.10.2000 B.S.N.L. (Bharat Sanchar Nigam Limited) was formed as a Government of India Enterprise and the service of the petitioner was transferred to B.S.N.L. w.e.f. 01.10.2000 where he served up to 31.12.2005.
4. The writ petitioner had superannuated on 31.12.2005. At the time of superannuation, the petitioner was posted as Divisional Engineer, Commercial in the office of the General Manager, Telecommunication, Ranchi at Telecom District Ranchi.
5. It is the case of the writ petitioner that on promotion the petitioner was placed in the pay scale of Rs. 10,000/- Rs. 15,200/-. The said promotion was an ad-hoc promotion. BSNL treated the petitioner and others who were placed in the aforesaid scale of pay to be in telecommunication engineering service Group 'B'.
6. It is the case of the writ petitioner that while serving as Divisional Engineer (Commercial) in the office of General Manager, Telecommunication, Ranchi, for the year 2000-01 some adverse remarks were made in the ACR. The said adverse remarks were communicated to the petitioner vide letter dated 27.03.2002. The petitioner filed representation dated 21.04.2002 against the said adverse remarks. After considering the representation, the same were ordered to be W.P.(S) No.4924 of 2022 -4- expunged partially and communicated by memo dated 22.02.2005.
7. The petitioner preferred an appeal for expunction of the remaining adverse remarks vide his representation dated 21.03.2005 before the Chief General Manager, Telecom, BSNL, Jharkhand Telecommunication Circle, Ranchi in respect of adverse remarks for the year 2000-01.
8. During the pendency of the appeal, the writ petitioner had superannuated on 31.12.2005. After his retirement, an office memorandum was circulated vide OM dated 18.01.2007 which was given retrospective effect. As per the policy, the eligibility criteria for IDA scale up- gradation as laid down in the OM required that the applicant should have completed 04 (four) years of service in the current IDA scale and the ACRS for the previous 05 (five) years should not have any adverse remark.
9. The petitioner sent a legal notice to the respondents for considering his case for next higher IDA scale as per Office Memorandum dated 18.01.2007. When no response was received from the end of respondents, the petitioner approached this Court by filing writ petition being W.P.(S) No.4942 of 2008 for issuance of direction to the respondents to consider his case for grant of the Time Bound up-gradation Promotion in terms of the BSNL OM dated 18.01.2007 which was disposed of on 26.03.2009 W.P.(S) No.4924 of 2022 -5- with direction to the respondents to consider the claim of applicant in accordance with the policy and pass a reasoned and speaking order.
10. Complying with the direction, respondents passed an order on 18.05.2009 turning down the request for up- gradation on grounds of adverse ACR entries and communicated the same to the petitioner vide order dated 25.05.2009. Thereafter petitioner challenged the order of respondents before Hon'ble Jharkhand High Court in W.P.(S) No. 4899 of 2009 which was dismissed on 01.02.2018 on merit.
11. Being aggrieved with the aforesaid order, the writ petitioner preferred Letters Patent Appeal being L.P.A. No.143 of 2018 before the Division Bench of this Court which was decided on 29.10.2018 setting aside the judgment on learned Single Judge on the ground that BSNL had been brought under the jurisdiction of Central Administrative Tribunal by DoP&T vide order dated October 31, 2008 with a liberty to the petitioner to approach the Tribunal against his grievances.
12. Subsequently, the writ petitioner preferred OA/051/00147/2019 challenging the validity of the order dated 18.05.2009 and 25.05.2009. Learned Tribunal found no illegality/infirmity in the impugned orders passed by the W.P.(S) No.4924 of 2022 -6- respondents and dismissed the original application, against which the present writ petition has been preferred.
13. It appears from the factual aspect that the appellant while posted as Divisional Engineer (Commercial), adverse entry was made in the ACR for the year 2000-01 which was communicated to him on 27.03.2002. The writ petitioner has filed representation on 21.04.2002 for review of the adverse entries. The same was decided by Chief General Manager (Telecom), Ranchi vide letter dated 22.02.2005 expunging one of the six adverse entries and retaining the remaining five. The applicant has further submitted two more representations on 21.03.2005 and on 07.02.2006 to Chief General Manager (Telecom), Ranchi for review of the adverse entries which were forwarded to BSNL Corporate Office on 15.02.2006 for decision as CGMT Ranchi had already reviewed the ACR and communicated his views.
14. The respondents, in the meanwhile, has issued one Memo on 18.01.2007 laying down the policy for Time Bound IDA (Industrial Dearness Allowance) Scale Up- gradation. As per the policy, the applicant, who was in the scale of Rs.14,500-350-18,700 at the time of retirement, came to be upgraded to Rs.16,000-400-20,800 scale. But, the same was not extended in favour of the writ petitioner on the ground that there were adverse entries in the ACR. W.P.(S) No.4924 of 2022 -7-
15. The writ petitioner had approached to this Court by filing writ petition being W.P.(S) No.4942 of 2008 for issuance of direction to consider his case for grant of the Time Bound up- gradation in terms of the BSNL OM dated 18.01.2007. The said writ petition was disposed of on 26.03.2009 with direction to the respondents to consider the claim of applicant in accordance with the policy and pass a reasoned and speaking order.
16. The authorities have passed an order on 18.05.2009 by turning down the request for up-gradation grounds of adverse ACR entries and communicated the same vide order dated 25.05.2009.
17. The writ petitioner again challenged the order dated 25.05.2009 by filing writ petition before this Court being W.P.(S) No. 4899 of 2009 but was dismissed on 01.02.2018 on merit. Aggrieved thereof, one Letters Patent Appeal being L.P.A. No. 143 of 2018 has been filed which was decided on 29.10.2018 setting aside the judgement of learned Single Judge on the ground that BSNL had been brought under the jurisdiction of Central Administrative Tribunal by DoP&T vide order dated October 31, 2008.
18. The Coordinate Division Bench of this Court had given liberty to the applicant to approach the Tribunal against his grievances.
W.P.(S) No.4924 of 2022-8-
19. The applicant-writ petitioner, in pursuance to the aforesaid liberty has filed the original application praying inter alia therein the following reliefs :-
(i) To quash the order dated 18.05.2009 (Annx: 13) communicated on 25.05.2009 (Annex:12) wherein the respondents upheld their decisions dated 22.02.2005 in respect of adverse entry in the applicant's ACR for the year 2000-2001.
(ii) To expunge the adverse entry as communicated by letter dated 27.03.2002 (Annx:2) to the extent upheld in the order dated 22.2.05 (Annexure 3) & to treat the ACR as "Good" in the light of representation dated 21.03.05 (Annexure 4), records of the case (Annexure 5,6,7) and the rules on the subject (Annexure 22).
(iii) To quash the decisions dated 25.5.2009 (Annx:12) wherein the respondents rejected the IDA up- gradation scale to the applicant.
(iv) To direct the respondents to release the IDA up-
gradation scales benefit to the applicant in view of the memorandum dated 18.01.2007 with all consequential benefits."
20. The Tribunal has considered the rival submissions made on behalf of the parties and taking into consideration the fact that there is adverse entry in the ACR and, hence, the same since has been taken as a ground for rejecting the W.P.(S) No.4924 of 2022 -9- claim of IDA upgradation scale and, as such, the impugned order has been refused to be interfered with by dismissing the original application as also, the other reliefs sought for, have also been dismissed against which the present writ petition.
21. Mr. Shiva Mohan Jha, the Party-in-Person, has appeared and has taken the following grounds :-
(i) While dealing with the representation filed in objection to the adverse entries made in the ACR, against six adverse entries made in the ACR, although one objection with respect to one adverse entry in ACR was accepted, but so far as the other adverse entries are concerned, the same have been rejected vide order dated
22.02.2005.
(ii) The petitioner became eligible for IDA upgraded scale with effect from 01.10.2004 and, as such, the decision so taken rejecting the objection filed against the adverse entries made in the ACR for the year 2000-01 even if to be accepted, then also since he became eligible for such upgradation on 01.10.2004, hence, the writ petitioner is entitled for IDA upgraded scale. But the aforesaid aspect has not been considered by the learned Tribunal.
(iii) The contention has been made by putting reliance upon the Office Memorandum dated 18.01.2007 whereby and whereunder, under the eligibility criteria, the due date W.P.(S) No.4924 of 2022 -10- has been decided by way of policy decision which will be the date on which the Executive fulfills the qualifying service conditions for upgradation in the next higher IDA upgraded pay scale as defined in Sub-para 3. The Sub-para 4 contains a condition that the qualifying service condition indicated in Sub-para 3 above will only enable the Executive for "consideration" for upgradation to next higher IDA scale. Completion of such period alone shall not entitle any Executive for automatic upgradation to the next higher IDA scale.
(iv) The writ petitioner has claimed that since he became eligible on 01.10.2004, as such, the due date for consideration of the next higher IDA scale will be 01.10.2004 and admittedly on 01.10.2004 adverse entry was there but the objection was not decided, rather, the said objection was decided on 22.02.2005. Therefore, the decision so taken as on 22.02.2005 cannot affect the eligibility which the writ petitioner had achieved on 01.10.2004.
(v) The ground has been taken that the decision of overruling the objection which was communicated on 22.02.2005 against the representation (objection) filed on 21.04.2002 will not disentitle the writ petitioner from consideration of case of higher IDA pay scale due to the laches committed on the part of the authority in not taking W.P.(S) No.4924 of 2022 -11- decision fairly for a period of about three years, since, the decision on the objection dated 21.04.2002 was only taken on 22.02.2005.
22. Per contra, Mr. Prabhat Kumar Sinha, learned counsel appearing for the respondent BSNL, has submitted that the due date as per office memorandum dated 18.01.2007 although will be the date when the Executive fulfills the qualifying service condition but admittedly herein, there was adverse entry against the writ petitioner which was duly been communicated vide communication dated 27.03.2002. The writ petitioner has filed objection vide representation dated 21.04.2002, although, a decision was taken on 22.02.2005 rejecting the aforesaid objection so far as it relates to the interference with the order of transfer and not visiting the public call centres under its jurisdiction. Therefore, the adverse entry available in the ACR has disentitled the writ petitioner for higher IDA scale, which, cannot be claimed by the writ petitioner on the ground of pendency of his representation filed for expunging the adverse entry made in the ACR.
23. Learned counsel appearing for the BSNL, on the aforesaid premise, has submitted that the learned Tribunal, after taking into consideration the aforesaid fact, if has refused to pass positive direction, the same cannot be said W.P.(S) No.4924 of 2022 -12- to suffer from an error and, therefore, the instant writ petition is fit to be dismissed.
24. We have heard learned counsel for the parties, perused the documents available on record as also the finding recorded by the learned Tribunal in the impugned order.
25. The undisputed fact in this case is that the writ petitioner while working as Divisional Engineer, had been communicated six adverse entries entered in the ACR for the year 2000-01. The adverse entries recorded in the ACR were communicated to the writ petitioner on 27.03.2002. The objection was filed on 21.04.2002. It appears that the adverse entry was based upon the allegation that the writ petitioner has tried to influence the order of transfer by making communication by putting political pressure and another of not monitoring the public call centres.
26. The law is well settled that if the adverse entry is being recorded in the ACR, the same is mandatorily to be communicated so as to provide an opportunity to the concerned employee to file objection. Reference in this regard be made to judgment rendered by Hon'ble Apex Court in the case of Sukhdev Singh v. Union of India and Others reported in (2013) 9 SCC 566 wherein the three Judges Bench, at paragraph 6 has held which is being referred and quoted hereunder as :- W.P.(S) No.4924 of 2022 -13-
"3. Subsequent to the above two decisions, in Dev Dutt v. Union of India [Dev Dutt v. Union of India, (2008) 8 SCC 725] , this Court had an occasion to consider the question about the communication of the entry in the ACR of a public servant (other than military service). A two- Judge Bench [Dev Dutt v. Union of India, (2008) 8 SCC 725] on elaborate and detailed consideration of the matter and also after taking into consideration the decision of this Court in U.P. Jal Nigam [U.P. Jal Nigam v. Prabhat Chandra Jain, (1996) 2 SCC 363] and principles of natural justice exposited by this Court from time to time particularly in A.K. Kraipak v. Union of India [(1969) 2 SCC 262] ; Maneka Gandhi v. Union of India [(1978) 1 SCC 248] ; Union of India v. Tulsiram Patel [(1985) 3 SCC 398]; Canara Bank v. V.K. Awasthy [(2005) 6 SCC 321] and State of Maharashtra v. Public Concern for Governance Trust [(2007) 3 SCC 587] concluded that every entry in the ACR of a public servant must be communicated to him within a reasonable period whether it is poor, fair, average, good or very good entry. This is what this Court observed in paras 17 and 18 of the Report in Dev Dutt [Dev Dutt v. Union of India, (2008) 8 SCC 725] at SCC p. 733:
"17. 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 [(1978) 1 W.P.(S) No.4924 of 2022 -14- SCC 248] that arbitrariness violates Article 14 of the Constitution.
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."
(emphasis in original)
5. In paras 37 and 41 of the Report this Court then observed as follows: (Dev Dutt case [Dev Dutt v. Union of India, (2008) 8 SCC 725], SCC pp. 737-38) "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 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.
***
41. 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 W.P.(S) No.4924 of 2022 -15- arbitrary, and as such violative of Article 14 of the Constitution."
6. We are in complete agreement with the view in Dev Dutt [Dev Dutt v. Union of India, (2008) 8 SCC 725] particularly paras 17, 18, 22, 37 and 41 as quoted above. We approve the same.
7. A three-Judge Bench of this Court in Abhijit Ghosh Dastidar v. Union of India [(2009) 16 SCC 146] followed Dev Dutt [Dev Dutt v. Union of India, (2008) 8 SCC 725] . In para 8 of the Report this Court with reference to the case under consideration held as under: (Abhijit Ghosh Dastidar case [(2009) 16 SCC 146] , SCC p. 148) "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 ACR 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 for 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 [Dev Dutt v. Union of India, (2008) 8 SCC 725] , 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 has no case that the appellant had ever been informed of the nature of the grading given to him."
27. It is evident from the aforesaid judgment that the necessity to communicate the adverse entry is to provide an W.P.(S) No.4924 of 2022 -16- opportunity to the concerned public servant so as to make objection by making request for expunging the said adverse entry. The purpose is to provide an opportunity before taking any adverse decision based upon the adverse entry made in the ACR.
28. Herein, the adverse entry has been made in the ACR of 2000-01. As per the communication made to that effect on 27.03.2002. The objection by making request for expunging the said adverse entry was made on 21.04.2002 but no decision was taken till 21.02.2005. However, the decision was taken on 22.02.2005 by rejecting the said objection whereby the adverse entry for 2000-01 was directed to be sustained.
29. The writ petitioner has approached to this Court by filing writ petition, in the first round of litigation, being W.P.(S) No.4942 of 2008 seeking quashing of the order rejecting the claim of the writ petitioner. The said writ petition was disposed of on 26.03.2009 with direction to the respondents to consider the claim of applicant in accordance with the policy and pass a reasoned and speaking order. The reasoned order was passed on 18.05.2009 by which the objection so submitted based upon which the impugned order was passed has been refused to be interfered with.
W.P.(S) No.4924 of 2022-17-
30. The writ petitioner, thereafter, has filed another writ petition being W.P.(S) No. 4899 of 2009 but the same was dismissed. Against which Letters Patent Appeal being L.P.A. No.143 of 2018 was filed. The said Letters Patent Appeal was disposed of by quashing and setting aside the order passed by the learned Single Judge with a liberty to the appellant to approach before the Tribunal, since, the BSNL had been brought within the purview of Central Administrative Tribunal by Notification issued by DoP&T dated October 31, 2008.
31. The Tribunal was approached by filing Original Application No. OA/051/00147/2019 making therein several prayers for quashing the rejection of the objection, expunging the adverse entries made in the ACR of 2000-01 and seeking direction upon the respondents to grant higher IDA pay scale. But the said original application has been dismissed against which this writ petition has been filed before this Court.
32. The Tribunal has rejected the claim mainly on the ground that there was adverse entry in the ACR and hence, during course of such entry, there cannot be a direction for next higher IDA pay scale to be extended in favour of the writ petitioner.
33. The claim of the writ petitioner is based upon the Office Memorandum dated 18.01.2007 whereby and W.P.(S) No.4924 of 2022 -18- whereunder the Time Bound IDA Scale Upgradation Policy has been formulated basis upon which the eligibility criteria has been fixed. Under the eligibility criteria, the due date has been decided which will be the date on which the Executive fulfills the qualifying service condition for upgradation to the next higher IDA pay scale as defined in Sub-para 3.
34. Sub-paragraph 3 provides qualifying service conditions. Sub-Paragraph 3.1 stipulates about the first upgradation as per which the IDA Scale of individual Executive will be due for consideration on completion of 4 (Four) years of Service in the current IDA scale subject to the condition that the Executive's basic pay in the current IDA scale has crossed/touched the lowest of the higher IDA scale for which his/her upgradation is to be considered or he/she has completed 6 (Six) years of service in the current IDA scale, whichever is earlier.
35. Sub-paragraph 3.2 provides for subsequent upgradation as per which the scale to the next higher IDA scale will be due on completion of 5 (Five) years of service in the current IDA scale.
36. The paragraph 4 as contained under Qualifying Service Conditions head provides the meaning of qualifying service conditions as indicated in Sub-paragraph 3 above will only enable the Executive for "consideration" for W.P.(S) No.4924 of 2022 -19- upgradation to next higher IDA scale. Completion of such period alone shall not entitle any Executive for automatic upgradation to the next higher IDA scale, for ready reference, the provision as contained in OM dated 18.01.2007 for this purpose is being referred hereunder as:-
"3. Qualifying Service Conditions:
3.1 FIRST Upgradation: The FIRST UPGRADATION of IDA Scale of individual Executive will be due for consideration on completion of 4 (Four) years of Service in the current IDA scale subject to the condition that the Executive's basic pay in the current IDA scale has crossed / touched the lowest of the higher IDA scale for which his / her upgradation is to be considered OR he / she has completed 6 (Six) years of service in the current IDA scale, whichever is earlier. 3.2 SUBSEQUENT Upgradation: The subsequent upgradation of IDA scale to the next higher IDA scale will be due on completion of 5 (Five) years of service in the current IDA scale.
4. The qualifying service conditions indicated in sub Para 3 above will only enable the Executive for "consideration" for upgradation to next higher IDA scale. Completion of such period alone shall not entitle any Executive for automatic upgradation to the next higher IDA scale."
37. The claim of the writ petitioner is that he became eligible for first upgradation on 01.10.2004 and as per the policy decision regarding the due date, the writ petitioner since has fulfilled the qualifying service condition for upgradation to the next higher IDA Scale and till the aforesaid date the respondent have taken no decision by rejecting the objection so filed against the adverse entry W.P.(S) No.4924 of 2022 -20- made in the ACR, hence, he became eligible for such upgradation. But the denial of the same by keeping the objection pending by the respondents, cannot be said to be proper ground.
38. We have appreciated the aforesaid argument by taking into consideration the policy decision as contained in Office Memorandum dated 18.01.2007 wherein the due date has been defined which will be the date on which the Executive fulfills the qualifying service condition for upgradation to the next higher IDA Scale as defined in Sub- paragraph 3. The due date herein for upgradation is 01.10.2004. This fact has not been disputed by the learned counsel appearing for the respondents.
39. The due date since was 01.10.2004 and as per the condition stipulated under paragraph 4 of the said policy decision that the qualifying service condition indicate that Sub-paragraph 3 above will only enable the Executive for consideration for upgradation to next higher IDA scale. Completion of such period alone shall not entitle any Executive for automatic upgradation to the next higher IDA scale. Therefore, as per the aforesaid condition the qualifying service condition is not only the sole criteria but the other conditions are also to be taken into consideration while granting such upgradation.
W.P.(S) No.4924 of 2022-21-
40. The right to consideration is there but fulfilling the qualifying service condition has not been said to be sole criteria to grant such upgradation. Herein, as per the Office Memorandum dated 18.01.2007, the case of the writ petitioner for upgradation was considered and rejected on the ground that he does not fulfill the requisite eligibility criteria on the due date of eligibility, as would appear from Annexure-16 to the paper book.
41. The question is that adverse entry of ACR for the year 2000-01 was there which was objected by filing representation with a request to expunge it vide representation dated 21.04.2002. But no decision was taken by the authority concerned, rather, the decision was only taken on 22.02.2005.
42. The further question will be that when the representation was filed with a request to expunge the adverse entries on 21.04.2002, keeping the matter pending on the day when the writ petitioner has become eligible for grant of upgradation, i.e., on 01.10.2004, will it be proper for the respondents to reject the claim of the writ petitioner for grant of next higher IDA scale?
43. The answer of this Court will be in negative since, if the ground is being taken of adverse entry made in the ACR of 2000-01, then it was incumbent upon the authority concerned to take a decision immediately after receipt of W.P.(S) No.4924 of 2022 -22- the representation with a request to expunge dated 21.04.2002 but taking no decision and in the meanwhile if the writ petitioner has become eligible for consideration on 01.10.2004, as such, in view of the condition stipulated under paragraph 1.0 I(b) read with paragraph 4 of the Office Memorandum dated 18.01.2007, the case of the writ petitioner ought to have been taken into consideration.
44. This Court is to decide the legality and propriety of the said decision rejecting the claim of the writ petitioner. The due date has been defined which will be date on which the Executive fulfills the qualifying service condition for upgradation. The time period has also been provided under Sub-paragraph 3.1 and 3.2 for first upgradation and subsequent upgradation respectively. Sub-paragraph 4 provides that qualifying service conditions indicated in Sub-paragraph 3 above will only enable the Executive for consideration for upgradation to the next higher IDA scale. However, completion of such period alone shall not entitle any Executive for automatic upgradation to the next higher IDA scale.
45. Here, this court is to answer the following questions :-
(i) Whether on the date when the writ petitioner has become eligible, i.e., on 01.10.2004, can the writ petitioner W.P.(S) No.4924 of 2022 -23- be denied the said benefit on the ground of adverse entry recorded in the ACR of 2000-01?
(ii) If the respondents have kept the matter of expunging the adverse entries made in the ACR for the year 2000-01 pending, even though the representation to that effect was filed on 21.04.2002 which was decided on 22.02.2005 rejecting the said prayer of expunging the adverse entries, but in the meanwhile the writ petitioner has become eligible for upgradation on 01.10.2004, can he be denied the said benefit?
(iii) Whether on the ground of subsequent decision taken by the respondent authorities for rejection of the request made for expunging the adverse entries will operate if the writ petitioner has become eligible on due date, i.e., on 01.10.2004 for next higher IDA scale?
46. Since all the three issues are interlinked and, as such, the same are being answered hereinbelow simultaneously.
47. The law is well settled that on the due date of eligibility the case of one or the other public servants is to be considered for regular promotion or even for upgradation of pay scale.
48. Reference in this regard be made to the judgment rendered by Hon'ble Apex Court in the case of Union of India and Others v. Krishna Kumar and Others W.P.(S) No.4924 of 2022 -24- reported in (2019) 4 SCC 319, paragraphs 10, 11 and 12 are being quoted hereunder as :-
"10. In considering the rival submissions, it must, at the outset, be noted that it is well settled that there is no vested right to promotion, but a right be considered for promotion in accordance with the Rules which prevail on the date on which consideration for promotion takes place. This Court has held that there is no rule of universal application to the effect that vacancies must necessarily be filled in on the basis of the law which existed on the date when they arose. The decision of this Court in Y.V. Rangaiah v. J. Sreenivasa Rao [Y.V. Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284] has been construed in subsequent decisions as a case where the applicable Rules required the process of promotion or selection to be completed within a stipulated time-frame. Hence, it has been held in H.S. Grewal v. Union of India [H.S. Grewal v. Union of India, (1997) 11 SCC 758] that the creation of an intermediate post would not amount to an interference with the vested right to promotion. A two- Judge Bench of this Court held thus : (H.S. Grewal case [H.S. Grewal v. Union of India, (1997) 11 SCC 758] , SCC p. 769, para 13) "13. ... Such an introduction of an intermediate post does not, in our opinion, amount to interfering with any vested rights cannot be interfered with, is to be accepted as correct. What all has happened here is that an intermediate post has been created prospectively for future promotions from Group B Class II to Group A Class I. If, before these Rules of 1981 came into force, these officers were eligible to be directly promoted as Commandants under the 1974 Rules but before they got any such promotions, the 1981 Rules came in obliging them to go through an intermediate post, this does not amount to interfering with any vested rights."
11. In Deepak Agarwal v. State of U.P. [Deepak Agarwal v. State of U.P., (2011) 6 SCC 725] , this Court observed thus : (SCC p. 735, paras 26-27) W.P.(S) No.4924 of 2022 -25- "26. It is by now a settled proposition of law that a candidate has the right to be considered in the light of the existing rules, which implies the "Rules in force" on the date the consideration took place. There is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises. The requirement of filling up old vacancies under the old rules is interlinked with the candidate having acquired a right to be considered for promotion. The right to be considered for promotion accrues on the date of consideration of the eligible candidates. Unless, of course, the applicable rule, as in Y.V. Rangaiah case [Y.V. Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284 : 1983 SCC (L&S) 382] lays down any particular time-frame, within which the selection process is to be completed. In the present case, consideration for promotion took place after the amendment came into operation. Thus, it cannot be accepted that any accrued or vested right of the appellants has been taken away by the amendment.
27. The judgments cited by the learned counsel for the appellants, namely, B.L. Gupta v. MCD [B.L. Gupta v. MCD, (1998) 9 SCC 223], P. Ganeshwar Rao v. State of A.P. [P. Ganeshwar Rao v. State of A.P., 1988 Supp SCC 740] and N.T. Devin Katti v. Karnataka Public Service Commission [N.T. Devin Katti v. Karnataka Public Service Commission, (1990) 3 SCC 157] are reiterations of a principle laid down in Y.V. Rangaiah case [Y.V. Rangaiah v. J. Sreenivasa Rao, (1983) 3 SCC 284]."
12. Recently, in State of Tripura v. Nikhil Ranjan Chakraborty [State of Tripura v. Nikhil Ranjan Chakraborty, (2017) 3 SCC 646], another two-Judge Bench of this Court held thus : (SCC pp. 650-51, para 9) "9. The law is thus clear that a candidate has the right to be considered in the light of the existing W.P.(S) No.4924 of 2022 -26- rules, namely, "rules in force on the date" the consideration takes place and that there is no rule of absolute application that vacancies must invariably be filled by the law existing on the date when they arose. As against the case of total exclusion and absolute deprivation of a chance to be considered as in Deepak Agarwal [Deepak Agarwal v. State of U.P., (2011) 6 SCC 725], in the instant case certain additional posts have been included in the feeder cadre, thereby expanding the zone of consideration. It is not as if the writ petitioners or similarly situated candidates were totally excluded. At best, they now had to compete with some more candidates. In any case, since there was no accrued right nor was there any mandate that vacancies must be filled invariably by the law existing on the date when the vacancy arose, the State was well within its rights to stipulate that the vacancies be filled in accordance with the Rules as amended. Secondly, the process to amend the Rules had also begun well before the Notification dated 24-11-2011."
49. Herein, the Office Memorandum dated 18.01.2007 has clarified the said position based upon the aforesaid position of law by taking the policy decision of due date which will be the date on which the Executive fulfills the qualifying service condition for upgradation.
50. For the first upgradation the time period is there and for subsequent upgradation also, the time period is there, as would appear from the quoted part of the policy decision as referred hereinabove.
51. However, in paragraph 4 the completion of the period as provided under Sub-paragraph 3 will not entitle W.P.(S) No.4924 of 2022 -27- any Executive for automatic upgradation to the next higher IDA scale.
52. Herein, the case of the writ petitioner was considered but was rejected on the ground of adverse entry made in the ACR. The adverse entry admittedly was made in the service record of the writ petitioner.
53. But, so long as the final decision which is to be taken by the respondents regarding the request for its expunction based upon the principle of communication of the adverse entry before taking any adverse decision as per the judgment of Hon'ble Apex Court rendered in the case of Sukhdev Singh v. Union of India and Others (Supra), according to our considered view, it will not be proper for the respondent authorities to take such ground for rejection of the claim of the writ petitioner while keeping the representation pending by not taking final decision.
54. If the contention of the respondents will be accepted, then the entire purpose of communicating the adverse entry will be redundant.
55. The purpose of communicating the adverse entry to the concerned person in whose Annual Confidential Record (ACR) adverse entry has been made, is to provide an opportunity to defend before taking any adverse decision on that count. The authority by not taking any decision even though the adverse entry communicated to the concerned W.P.(S) No.4924 of 2022 -28- public servant and an objection has made with a request to expunge it but no decision has been taken in this regard then it will not be appropriate and proper for the respondent authorities to consider the said adverse entry as a rider in the subsequent grant of benefit.
56. Learned counsel for the respondents has argued with emphasis that the said adverse entry was rejected on 22.02.2005. He, therefore, argued that the adverse entry which was made and communicated on 27.03.2002 even if no final decision was taken as on the date of upgradation then also the same is construed to be adverse entry recorded in the service record.
57. But, we are not in agreement with such submission for the reason that if the said submission will be accepted then the very purpose of communicating the adverse entry so as to provide an opportunity to defend with a request to expunge it so that the same may not be taken as a rider for the future prospective of one or the other public servant will become redundant.
58. By taking reliance of the Office Memorandum dated 18.01.2007, the claim of the writ petitioner has been rejected disentitling him for the said benefit.
59. But, according to our considered view, the Office Memorandum dated 18.01.2007 also contains policy decision that the date on which the Executive fulfills the W.P.(S) No.4924 of 2022 -29- qualifying service condition, he becomes eligible for consideration for next higher IDA scale.
60. The consideration is there but it has been rejected on the ground of adverse entry.
61. But the said adverse entry cannot be said to attain its finality as on 01.10.2004, rather, the same attained its finality on 22.02.2005.
62. Therefore, the order by which adverse entry made in the ACR of the writ petitioner since has come to finality on 22.02.2005, it cannot be said to be operative with retrospective effect, i.e., from 01.10.2004.
63. This Court, therefore, is of the view that the authorities cannot be allowed to take adverse decision by keeping the matter pending while taking adverse decision on the garb of adverse entry made in the ACR.
64. There is no dispute that merely because one or the other Executive became eligible on the due date, the same does not entitle as a matter of right for upgradation, there will be only right to consideration.
65. Here, the consideration of the claim of the writ petitioner has been given regarding upgradation but has been rejected, which according to our considered view, cannot be said to be just and proper for the reason of not taking final decision in the adverse entry for which due W.P.(S) No.4924 of 2022 -30- objection was filed with a request to expunge the said remark.
66. The Hon'ble Apex Court in the case of Kusheshwar Prasad Singh v. State of Bihar and Others reported in (2007) 11 SCC 447 has held that a man cannot be permitted to take undue and unfair advantage of his own wrong to gain favourable interpretation of law. It is sound principle that he who prevents a thing from being done shall not avail himself of the non-performance he has occasioned. To put it differently, "a wrongdoer ought not to be permitted to make a profit out of his own wrong. For ready reference paragraphs 15 and 16 are being quoted hereunder as:-
"15. In Union of India v. Major General Madan Lal Yadav [(1996) 4 SCC 127] the accused army personnel himself was responsible for delay as he escaped from detention. Then he raised an objection against initiation of proceedings on the ground that such proceedings ought to have been initiated within six months under the Army Act, 1950. Referring to the above maxim, this Court held that the accused could not take undue advantage of his own wrong. Considering the relevant provisions of the Act, the Court held that presence of the accused was an essential condition for the commencement of trial and when the accused did not make himself available, he could not be allowed to raise a contention that proceedings were time- barred. This Court (at SCC p. 142, para 28) referred to Broom's Legal Maxims (10th Edn.), p. 191 wherein it was stated:
"It is a maxim of law, recognised and established, that no man shall take advantage of W.P.(S) No.4924 of 2022 -31- his own wrong; and this maxim, which is based on elementary principles, is fully recognised in courts of law and of equity, and, indeed, admits of illustration from every branch of legal procedure."
16. It is settled principle of law that a man cannot be permitted to take undue and unfair advantage of his own wrong to gain favourable interpretation of law. It is sound principle that he who prevents a thing from being done shall not avail himself of the non-performance he has occasioned. To put it differently, "a wrongdoer ought not to be permitted to make a profit out of his own wrong".
67. Similar view has been reiterated by Hon'ble Apex Court in the case of Indore Development Authority v. Shailendra (Dead) through legal representatives and others reported in (2018) 3 SCC 412 at paragraph 143 which is being quoted hereunder as:-
"143. When once the court has restrained the State authorities to take possession, or to maintain status quo they cannot pay the amount or do anything further, as such the consequences of interim orders cannot be used against the State. It is basic principle that when a party is disabled to perform a duty and it is not possible for him to perform a duty, is a good excuse. It is a settled proposition that one cannot be permitted to take advantage of his own wrong. The doctrine commodum ex injuria sua nemo habere debet means convenience cannot accrue to a party from his own wrong. No person ought to have advantage of his own wrong. A litigant may be right or wrong. Normally merit of lis is to be seen on date of institution. One cannot be permitted to obtain unjust injunction or stay orders and take advantage of own actions. Law intends to give redress to the just causes; at the same time, it is not its policy to foment litigation and enable to reap the fruits owing to the delay caused by unscrupulous persons by their own actions by misusing the process of law and dilatory tactics."W.P.(S) No.4924 of 2022 -32-
68. Here, if the plea of the respondents will be accepted, then the same will amount to premium to the respondents who have committed wrong by keeping the matter pending for expunging the adverse remarks made in the ACR.
69. This Court, therefore, is of the view, based upon the aforesaid reason that the learned Tribunal ought to have taken into consideration the aforesaid aspect of the matter by taking into consideration the fact that there is laches and delay committed on the part of the respondents but there is no consideration.
70. This Court, while exercising the power of judicial review under Article 226 of the Constitution of India, is of the view that the learned Tribunal ought to have taken into consideration the very aspect of the matter about the due date of eligibility and the fact about finality of the adverse entry made in the ACR. But, having not done so, therefore, the impugned order dated 19.07.2022 passed by learned Central Administrative Tribunal, Patna Bench, Circuit Bench, Ranchi in OA/051/00147/2019 is hereby quashed and set aside.
71. In consequence thereof, the writ petition stands allowed.
72. The order dated 18.05.2009 communicated on 25.05.2009 by which the claim of the writ petitioner for W.P.(S) No.4924 of 2022 -33- next higher IDA scale has been rejected, is hereby quashed and set aside.
73. Consequence to follow.
74. It has been informed that the writ petitioner has already been superannuated from service and as such, it will be just and proper to pass a direction upon the respondent to extend all the consequential monetary benefits within stipulated period.
75. In view thereof, the respondents are directed to extend all the consequential monetary benefits in favour of the writ petitioner within a period of three months.
I agree (Sujit Narayan Prasad, J.)
(Navneet Kumar, J.) (Navneet Kumar, J.)
Birendra/ N.A.F.R.