Dr. Indira Saranath vs Union Of India
- Court
- Supreme Court
REPORTABLE
IN THE SUPREME COURT OF INDIA
2026 INSC 553
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2536 OF 2011
DR. INDIRA SARANATH APPELLANT
VERSUS
UNION OF INDIA AND ANOTHER RESPONDENTS
J U D G M E N T
ATUL S. CHANDURKAR, J
1. The issue raised in this Civil Appeal is the entitlement of
the appellant to promotion on the post of Chief Medical
Director (Higher Administrative Grade) in the Indian Railway
1
Medical Service . The claim of the appellant having been
2
turned down by the Central Administrative Tribunal vide its
judgment dated 22.05.2007 and that adjudication having
3
been upheld by the Delhi High Court on 09.01.2009, the
appellant has preferred this Civil Appeal.
Signature Not Verified
Digitally signed by
NIDHI AHUJA
Date: 2026.05.26
17:44:04 IST
Reason:
1
For short, ‘IRMS’
2
For short, ‘the Tribunal’
3
For short, ‘the High Court’
Civil Appeal No.2536 of 2011 Page 1 of 28
2. It is the case of the appellant that after obtaining
requisite qualification for being recruited at the IRMS, she was
appointed as Assistant Medical Officer. During the course of
service, the appellant was eligible for being considered for
further promotion. On 06.12.2006, the Railway Board
published two lists with regard to promotion and posting of
4
various officers from Senior Administrative Grade as Chief
5 6
Medical Director in Higher Administrate Grade . According to
the appellant, despite being entitled to be promoted in HAG,
she was deprived of the same and an officer junior to her came
to be promoted. The appellant, therefore, approached the
Tribunal raising a challenge to the promotion of respondent
Nos. 3 to 9 and further sought relief of promotion as CMD,
HAG. The Original Application preferred by the appellant
came to be decided on 22.05.2007 by the Tribunal. It was held
7
that the Selection Committee on 10.08.2006 considered the
cases of about ten officers out of whom six came to be
promoted as CMD, HAG. The appellant was at serial No.10.
Her grading from 2001-02 to 2005-06 was considered by the
4
For short, ‘SAG’
5
For short, ‘CMD’
6
Fort short, ‘HAG’
7
For short, ‘SC’
Civil Appeal No.2536 of 2011 Page 2 of 28
SC. On the ground that the appellant did not secure the
8
grading of ‘Very Good +’ , the Tribunal held that the criteria
required to be satisfied for being considered for promotion was
not satisfied. Accordingly, the Original Application came to be
dismissed.
3. The appellant approached the High Court challenging
the judgment of the Tribunal. The High Court held that the
Resolution dated 28.03.2000 by which the Railway Board laid
down the procedure as well as the eligibility criteria for
promotion as well as the Circular dated 03.06.2002 by which
the Railway Board prescribed the benchmark of VG+ for
promotion to the HAG was not under challenge. It was,
therefore, held that the appellant having failed to secure the
grading of VG+ coupled with the fact that she was awarded
19.5 marks, the assessment undertaken by the SC could not
be faulted. By observing that the competence of SC was not
liable to be questioned, the writ petition was dismissed. Being
aggrieved, the appellant is before this Court.
8
For short, ‘VG+’
Civil Appeal No.2536 of 2011 Page 3 of 28
4. Mr. Jaideep Gupta, learned Senior Advocate for the
appellant while raising a challenge to the impugned judgment
made the following submissions:
a) The SC applied the benchmark of VG+ which was in
violation of the relevant service rules. According to the
Secretary, Railway Board, the benchmark of VG+ was
proposed vide letter dated 22.05.1996 and the same was
approved by the letter dated 26.08.1996 issued by the
9
Department of Personnel and Training . Subsequently
however, the DoPT on 08.02.2002 issued an Office
10
Memorandum prescribing the benchmark of ‘Very Good’. It
was further directed that any other OM in conflict with the
OM dated 08.02.2002 was to be treated as modified to that
extent. Despite aforesaid, the Railway Board and the SC
assessed the eligibility of the appellant for promotion by
applying the benchmark of VG+. As a result, by applying the
wrong benchmark, the appellant had been deprived of proper
consideration for promotion.
9
For short, ‘DoPT’
10
For short, ‘OM’
Civil Appeal No.2536 of 2011 Page 4 of 28
b) Uncommunicated adverse entries in the Annual
11
Confidential Reports were taken into consideration by the
SC. In this regard, it was submitted that the Railway Board
having failed to communicate adverse entries awarded to the
appellant, she was deprived of making any representation
against the same. Relying on the decision in Dev Dutt Vs.
12
Union of India and others and the subsequent decision of
the larger Bench in Sukhdev Singh Vs. Union of India and
13
others , it was submitted that all entries in the ACRs,
adverse or otherwise, were required to be mandatorily
communicated to the concerned employee. Notwithstanding
the fact that these decisions were rendered after the
appellant’s candidature was concerned by the SC, the said
decisions merely clarified the legal position and, hence, were
deemed to have effect since inception.
c) The appellant’s ACRs were destructed ignoring the
pendency of the present proceedings. It was submitted that
for assessing the legal submissions of the appellant, perusal
of the ACRs maintained by the Railway Board was material.
11
For short, ‘ACRs’
12
2008 INSC 630
13
2013 INSC 275
Civil Appeal No.2536 of 2011 Page 5 of 28
The hearing of the writ petition before the High Court
concluded on 13.11.2007 and the impugned judgment was
delivered on 09.01.2009. Shortly thereafter, the appellant
filed the present proceedings before this Court and on
24.07.2009, notice was issued to the respondents. Though the
Railway Board appeared in the present proceedings and filed
its counter affidavit, it was submitted to this Court that the
service records of the appellant had been weeded out. The
learned Senior Advocate invited attention to the orders dated
12.10.2023, 29.11.2023 and 10.01.2024 passed in the
present proceedings in this regard. He also referred to the
affidavit dated 09.02.2024 filed on behalf of the Railway Board
wherein it was stated that in a case where judicial process
was undertaken, the service records were required to be
retained till the conclusion of the same. The Railway Board
having failed to produce the appellant’s ACRs for the relevant
period despite grant of opportunity, an adverse inference was
liable to be drawn against it. By failing to produce the
appellant’s ACRs, the Railway Board sought to deprive the
appellant of a fair consideration of her case.
Civil Appeal No.2536 of 2011 Page 6 of 28
It was, thus, submitted that in the light of aforesaid
submissions, the appellant was entitled to the reliefs as
prayed for notwithstanding the fact that she had retired from
service on 31.05.2008. It was prayed that the appeal be
accordingly allowed.
5. Mr. Vikramjit Banerjee, learned Additional Solicitor
General for the respondents supported the impugned
judgment and urged as under:
a) The Railways having framed its own service rules and
regulations, it was not bound by the OM’s issued by the DoPT.
Referring to the communication dated 22.05.1996 issued by
the Secretary, Railway Board indicating the policy for
promotion from SAG to Additional Secretary Grade, it was
submitted that the same had been approved by the DoPT on
26.08.1996. In view of the Government of India (Allocation of
14
Business) Rules, 1961 , the Railways were entitled to frame
its own policy and Resolution dated 29.03.2000 had been
accordingly passed. It was submitted that this issue was no
longer res integra in view of the decision in Prabhat Ranjan
14
For short, ‘Rules of 1961’
Civil Appeal No.2536 of 2011 Page 7 of 28
15
Singh and another Vs. R.K. Kushwaha and others . The
exercise, thus, undertaken by the SC in accordance with the
promotion policy of the Railways could not be challenged on
the ground that inapplicable criteria was applied to the case
of the appellant.
b) The benchmark of VG+ had been rightly applied to the
case of the appellant. That benchmark required two
‘Outstanding’ ACR ratings and three ‘Very Good’ ratings in the
preceding five years for being considered by the SC. This was
clear from the letter dated 03.06.2002 issued by the Ministry
of Railways. The appellant having failed to meet the said
benchmark, she was not considered suitable for promotion to
HAG. Besides, the SC was also required to view the suitability
of the concerned candidate for promotion on the basis of
service records. The SC took into consideration all the relevant
material related to the appellant and thereafter found her not
suitable for promotion.
c) On the ground of non-communication of adverse
remarks, it was submitted that prior to 2008-09 before the
15
2018 INSC 796
Civil Appeal No.2536 of 2011 Page 8 of 28
decision in Dev Dutt (supra) , the final gradings in the ACR were
never conveyed to any individual officer unless such grading
was ‘Average’ or ‘Below Average’. Reference was made to the
communication dated 16.09.1998 issued by the Secretary,
Railway Board. It was only after the decision in Dev Dutt
(supra) that the DoPT issued Instructions in the form of OM
dated 14.05.2009 requiring disclosure of all entries in the
ACRs. These Instructions were adopted by the Railway Board
pursuant to its letter dated 18.08.2009. In the light of the fact
that the Ministry of Railways had the power to frame its own
rules and regulations, it could not be said that the appellant
was entitled to be communicated all the entries in her ACRs.
It was further submitted that the law laid down in Dev Dutt
and Sukhdev Singh (supra) did not have any retrospective
application. Moreover, the prayer for a direction to grant
promotion retrospectively was not liable to be granted in the
16
light of the decision in Union of India Vs. Chaman Rana .
(d) As regards weeding out of the relevant service records of
the appellant, it was submitted that the factual position was
brought on record by the Ministry of Railways in its affidavit
16
2018 INSC 230
Civil Appeal No.2536 of 2011 Page 9 of 28
dated 09.02.2024. The ACRs of the appellant had been
inadvertently weeded out on the expiry of a period of five years
and the same were now not available. However, the career
card of the appellant containing the summary of the final
gradings in the ACRs were available. It, therefore, could not
be said that any prejudice whatsoever had been caused to the
appellant on account of destruction of her ACRs.
e) It was submitted that the Tribunal having considered the
entire material on record and having agreed with the
conclusion of the SC which adjudication was also upheld by
the High Court, the appellant was not entitled for any relief
whatsoever. In absence of there being any illegality or
arbitrariness in the action of the Railway Board in not
promoting the appellant and she having retired from service
on 31.05.2008, no relief could be granted to her. The appeal
was, thus, liable to be dismissed.
6. We have heard the learned senior counsel for the parties
at length and with their assistance, we have also perused the
documentary material on record. The appellant’s challenge to
her non-promotion is principally based on the premise that
adverse entries in her ACRs were not communicated to her,
Civil Appeal No.2536 of 2011 Page 10 of 28
thus causing prejudice, that a wrong benchmark was applied
while considering the appellant’s case for promotion and that
by weeding out her service records despite pendency of the
present proceedings, an adverse inference was liable to be
drawn against the respondents.
7. Since it is urged on behalf of the appellant that by
applying a wrong benchmark, her case for promotion was
incorrectly considered by the SC, it would be necessary to deal
with this submission first. It is submitted that in view of the
OM issued by the DoPT on 08.02.2002, the benchmark of
‘Very Good’ was prescribed and the same ought to have been
applied by the SC. However, on the basis of other OMs that
were in conflict with the OM dated 08.02.2002, the appellant’s
candidature was not properly considered. On the other hand,
it was urged by the respondents that the Ministry of Railways
and the Railway Board had its own rules and regulations with
regard to service matters and that they were not bound by the
OMs framed by the DoPT.
We do not feel it necessary to go into this aspect in detail
as this very issue was the subject matter of consideration by
this Court in Prabhat Ranjan Singh and another (supra). The
Civil Appeal No.2536 of 2011 Page 11 of 28
very same question “whether the Railways are bound by the
rules framed by the DoPT or whether it could frame its own
rules” fell for consideration therein. After referring to the
Rules of 1961 that were framed under Article 77(3) of the
Constitution of India, it was observed in paragraphs 20 and
21 as under:
“20. A perusal of the Allocation of Business Rules, 1961,
especially the highlighted portion leaves no manner of doubt
that the Railways is specifically excluded from the ambit of the
scope of business allocated to the DoPT, whether it be for
classification of posts, recruitment of ministerial staff,
appointment of non-indians to civil posts, fixing of service
conditions, including conduct rules, general policy regarding
retrenchment and revision of temporary service of the Railways
etc., and as such the DoPT cannot issue binding circulars upon
the Railways. We may make it clear that if the DoPT issues a
circular and the Railways specifically accepts the circular or
makes it applicable, then such a circular may apply but if the
circular is not made specifically applicable then it has no force
so far as the Railways and its employees are concerned.
21. In the same Allocation of Business Rules, 1961 while
allocating business to the Ministry of Railways power has been
given to it to deal with all matters including those relating to
Revenue and Expenditure. Therefore, the Ministry of Railways
has the power to lay down conditions of service for its
employees.”
It was, thus, concluded that service conditions of
employees of the Railways were governed by the rules framed
by it which would include the Indian Railways Establishment
Code as well as the Indian Railways Establishment Manual. It
is, thus, clear from the aforesaid decision that what would be
Civil Appeal No.2536 of 2011 Page 12 of 28
material would be the rules and regulations framed by the
Ministry of Railways or by the Railway Board and if any
Circular of the DoPT was not specifically accepted by the
Railways, such Circular would not be applicable.
8. Perusal of the communication dated 22.05.1996 issued
by the Secretary, Railway Board indicates that the benchmark
‘VG+’ was specifically made applicable for selection to posts in
the grade. The requirement with regard to the previous five
years ACRs was that the officer should earn minimum of three
‘Very Good’ and two ‘Outstanding’ reports. This proposal by
the Railway Board was accepted by the DoPT on 26.08.1996.
On the other hand, the OM dated 08.02.2002 was issued by
the DoPT wherein the benchmark of ‘Very Good’ was
prescribed. However, on 03.06.2002, the Railway Board
issued a Circular prescribing the benchmark for promotion to
various grades including ‘HAG’. The benchmark of ‘VG+’ was
prescribed with the note that ‘stringent criteria of selection
shall apply for promotion to ‘HAG’. It is, thus, clear that
notwithstanding OM dated 08.02.2002 issued by the DoPT,
the Railway Board on 03.06.2002 issued a Circular
prescribing benchmark ‘VG+’ for promotion to ‘HAG’. It is this
Civil Appeal No.2536 of 2011 Page 13 of 28
Circular dated 03.06.2002 that would therefore govern the
case of the appellant. The SC, as is clear from the Minutes of
its proceedings has applied this benchmark while considering
the candidature of ten officers for promotion to HAG grade. It,
therefore, cannot be said that the SC applied a wrong
benchmark while assessing the eligibility of the appellant for
promotion. This ground of challenge raised by the appellant,
therefore, cannot be accepted.
9. Having found that the SC had applied the appropriate
benchmark for considering the appellant’s candidature for
promotion, the other grievance of the appellant regarding non-
communication and non-supply of her ACRs requires
consideration. According to the appellant, she was entitled to
be considered for promotion as CMD in HAG. For considering
her eligibility to be promoted, the ACRs for the preceding five
years were required to be taken into consideration. As per the
Minutes of the proceedings of the SC held on 10.08.2006, the
ACRs for the period from March 2002 to March 2006 were
taken into consideration. The appellant’s grading for all the
five years was ‘Very Good’. She was also considered fit for
consideration. It is, however, the case of the appellant that her
Civil Appeal No.2536 of 2011 Page 14 of 28
annual gradings were never communicated to her as a result
of which, she was unable to either make a representation
against such entries or take appropriate steps in the matter.
On the other hand, according to the respondents it was only
if the entries in the ACRs were ‘Average’ or ‘Below Average’
that the same were required to be communicated to the
concerned employee. It is for this reason the appellant was
never communicated her gradings.
In this regard, the appellant seeks to rely upon the law
laid down by this Court in Dev Dutt (supra) that was
subsequently approved by a larger Bench in Sukhdev Singh
(supra) . It is urged that these decisions clarify the legal
position that every entry in an ACR was required to be
communicated to every officer within reasonable time to
enable such officer to take further steps, if required. Though
the decision in Dev Dutt (supra) was rendered on 12.05.2008
which is after the candidature of the appellant was considered
for promotion, the same would not make any difference since
the said decision merely reiterated/clarified the existing legal
position. On the other hand, the respondents contend that
only after the decision in Dev Dutt (supra) that OM dated
Civil Appeal No.2536 of 2011 Page 15 of 28
14.05.2009 came to be issued by the DoPT and the new
system of communicating all entries in the ACRs was made
applicable prospectively from 2008-09.
10. Before considering the contention raised by the
appellant as regards the effect of the ratio in Dev Dutt (supra) ,
it is to be noted that prior to the appellant’s candidature being
considered by the SC on 28.12.2005, she had issued a
communication to the Director General, Railway Health
Services seeking a review of her confidential reports. She
stated that for reasons not connected with her discharge of
duties, it was likely that her confidential reports had not been
properly assessed. According to her, she was not supplied her
ACRs despite such demand. In the Original Application
preferred by the appellant before the Tribunal, one of the
reliefs sought by her was to quash/ignore the adverse ACRs,
if any. The Tribunal in paragraph 47 of its judgment, however,
did not grant that relief. The appellant then raised such
ground in her writ petition stating that non-communication of
her ACRs had caused her prejudice. These factual aspects are
being mentioned only to indicate that even prior to the
consideration of the appellant’s candidature for promotion by
Civil Appeal No.2536 of 2011 Page 16 of 28
the SC, she had been demanding her ACRs by raising a
grievance that she had been downgraded.
11. Coming to the aspect of non-communication of entries
in the ACRs of the appellant, it was urged on behalf of the
respondents that such requirement came to be prescribed
only by the OM dated 14.05.2009 issued by the DoPT
pursuant to the decision in Dev Dutt (supra) . Hence, no
retrospective benefit of the decision in Dev Dutt (supra) could
be sought. In this regard, heavy reliance was placed on the
decision in Chaman Rana (supra) to contend that no
retrospective operation could be given to the law as
enunciated in Dev Dutt and Sukhdev Singh (supra) . We,
however, find that the ratio laid down in Chaman Rana (supra)
is clearly distinguishable in view of the facts involved therein.
In Chaman Rana (supra) , one of the respondents claimed
to be superseded in the year 1997. He made a representation
on 20.02.1997 and the same was rejected by assigning
reasons on 25.03.1997. The said respondent, however, made
numerous representations thereafter and approached the
High Court only in the year 2015. Similarly, the other
respondent was superseded in the year 2001-02. He too made
Civil Appeal No.2536 of 2011 Page 17 of 28
various representations and ultimately challenged his
supersession in the year 2015. The High Court directed
consideration of the case of the said employees for promotion
with retrospective effect. The Union of India challenged the
decision of the High Court contending that the claims made
by the said respondents were highly belated and stale.
Granting retrospective promotion would have had a cascading
effect leading to administrative chaos. It was held that mere
filing of repeated representations would not be a sufficient
explanation for the delay in approaching the Court for seeking
relief. It was found that the direction to consider the grant of
retrospective promotion after a lapse of about seventeen to
twenty years would result in administrative chaos as well as
financial implications for the State. The Court distinguished
the decision in Dev Dutt (supra) by noticing that the meeting
of the Departmental Promotion Committee was held on
16.12.1994 and the appellant therein had immediately moved
the High Court. The Single Judge had decided the writ
petition on 21.08.2001 and the Division Bench rendered its
decision on 26.11.2001. Dev Dutt, the appellant had
approached this Court in the year 2002.
Civil Appeal No.2536 of 2011 Page 18 of 28
It is, thus, clear that in Chaman Rana (supra) , the
issuance of a direction for grant of retrospective promotion at
a belated stage was set aside as the same would have resulted
in administrative chaos. We, therefore, find that the ratio of
this decision cannot be made applicable to the facts of the
present case.
12. We may profitably refer to the decision of a three Judge
Bench in Abhijit Ghosh Dastidar Vs. Union of India and
17
others . Therein, the issue pertained to consideration of a
claim for promotion by the Departmental Promotion
Committee on 15.12.1999 and 28.02.2001. Two entries in the
service record dated 22.09.1997 and 08.02.1998 that were
considered to be adverse had not been communicated to the
said appellant. On being denied promotion, the appellant
contended that adverse entries that were not communicated
were not liable to be taken into consideration by the
Departmental Promotion Committee. It was held that non-
communication of the entries in the ACR of a public servant
has civil consequences and could affect his chance for
promotion or getting other benefits. Reference was made on
17
SLP (C) No.26566 of 2004 decided on 22.10.2008
Civil Appeal No.2536 of 2011 Page 19 of 28
the decision in Dev Dutt (supra). Accordingly, the Court
granted benefit of retrospective promotion from 28.08.2000,
which was the date on which an officer who was immediately
junior to the appellant was promoted. The pension of the
appellant was directed to be refixed alongwith other retiral
benefits.
It is, thus, clear from the aforesaid decision that the
dispute pertained to the adverse entries of the years 1997-98.
Their non-communication was found to be unjustified and
arbitrary. Relief was, accordingly, granted to the said
appellant. Even though the decision in Dev Dutt (supra) was
rendered on 12.05.2008, the ratio as regards non-
communication of adverse entries resulting in civil
consequences was applied for the period prior to that
decision. The ratio of this decision, therefore, would apply to
the facts of the present case.
13. The aforesaid discussion would indicate that the
entitlement to communication of entries in ACRs was found
to be necessary as their non-communication results in civil
consequences. In the present case, it can be seen that even
prior to the decision in Dev Dutt (supra) , the appellant had
Civil Appeal No.2536 of 2011 Page 20 of 28
been demanding copies of her confidential reports which is
evident from the communication dated 28.12.2005 issued by
her. This request was pursued by the appellant before the
Tribunal and the grievance in this regard was also made
before the High Court. The fact remains that the appellant’s
confidential reports were not supplied to her despite being
demanded. This aspect would definitely have material bearing
when considered cumulatively alongwith non-communication
of the appellant’s ACRs.
14. The issue can be viewed from another angle. The
respondents seek to rely upon the communication dated
16.09.1998 issued by the Secretary, Railway Board wherein
it is stated that all unfavourable remarks recorded in an ACR
should be communicated to the officer within a month of
finalisation of the report by the Accepting Authority. This is to
enable the officer to make a representation against such
remarks. In Dev Dutt (supra) , it has been held that the
nomenclature of an entry is not relevant but its effect is
determinative whether the entry is adverse or not. It was
observed that a ‘good’ entry would be of no satisfaction to an
incumbent if such entry makes him ineligible for promotion
Civil Appeal No.2536 of 2011 Page 21 of 28
or has an adverse effect on his chances. Thus, every entry in
the ACR of a public servant has to be communicated to him.
A three Judge Bench in Sukhdev Singh (supra) has approved
the aforesaid view.
Thus, when the communication dated 16.09.1998
issued by the Railway Board is read in the context of the law
laid down in Dev Dutt and Sukhdev Singh (supra) , it is evident
that the appellant was entitled to receive her ACRs
notwithstanding the ‘Very Good’ entries as she was not
considered suitable for empanelment despite such grading.
15. Another factor that has material bearing is the weeding
out of the appellant’s ACRs despite pendency of her judicial
proceedings. The record indicates that during pendency of the
present appeal, a request was made on behalf of the appellant
to produce her ACRs. According to the respondents, her
relevant records had been weeded out inadvertently. In the
affidavit filed on behalf of the respondents dated 09.02.2024,
the position that confidential reports of an officer were
required to be retained till any judicial process was concluded,
was accepted. It was, however, stated that the appellant’s
service records came to be inadvertently destroyed in 2013
Civil Appeal No.2536 of 2011 Page 22 of 28
after five years of her superannuation. It may be noted that
the present proceedings had been filed on 18.04.2009 within
a year of her superannuation and thus, her relevant records
ought to have been retained. It is on this factual premise that
the appellant urges the Court to draw an adverse inference
against the respondents as retention of her ACRs, their
production and consideration in the present proceedings
would have gone against them.
16. Yet another aspect that requires consideration is the
award of 19.5 points to the appellant by the SC. The same has
been referred to in paragraph 27 of the impugned judgment
and it has been observed that in terms of communication
dated 22.05.1996, the appellant did not fall within the ‘grey
area’ count. According to the appellant, her assessment could
not have been made in any fragment as the communication
dated 22.05.1996 prescribing the manner of assessment did
not provide for the same. A perusal of the communication
dated 22.05.1996 issued by the Secretary, Railway Board
indicates formulation of the promotion policy in Railway
Services for grade ₹ 7300-7600/-. It directs award of points in
the following manner: ‘Outstanding’ performance- five points,
Civil Appeal No.2536 of 2011 Page 23 of 28
‘Very Good’ performance - four points, ‘Good’ performance -
three points and ‘Average’ performance - two points be
assigned. The justification offered by the respondents is that
the fraction was a result of arriving at a mean of two part
confidential reports written for a particular year.
We do not find any such course mentioned in the
communication dated 22.05.1996. Moreover, the year in
which two part confidential reports were written has also not
been indicated by the respondents. Thus, even going by the
communication dated 22.05.1996 issued on behalf of the
Railway Board, there is no provision for awarding any points
in fraction. It can, therefore, be said that the performance of
the appellant was assessed by the SC without indicating the
basis for awarding 19.5 points to her, especially when the
Minutes of the SC held on 10.08.2006 indicate that
assessment for every year from March 2002 to March 2006
was ‘Very Good’. Taking four points for each entry, twenty
points for five years ought to have been awarded. The case of
the appellant would, therefore, have to be adjudged on the
premise that she had been awarded twenty points on the
assessment of her ACRs for the last five years.
Civil Appeal No.2536 of 2011 Page 24 of 28
17. From the aforesaid discussion, three factors are found to
be relevant. Firstly, the appellant was not supplied the various
entries made in her ACRs despite her request made prior to
her assessment by the SC. Secondly, the service records of the
appellant came to be weeded out despite pendency of judicial
proceedings initiated by her on the same subject matter and
thirdly, the award of points in a fraction when no such
enabling provision is brought on record nor the
communication dated 22.05.1996 provides for the same.
These relevant factors borne from the record would have to be
cumulatively assessed while considering the entitlement of
the appellant.
Taking these aspects together, in our view, prejudice has
been shown to have been caused to the appellant by the non-
communication of her ACRs. We have found that the decision
in Dev Dutt (supra) merely recognises the principle that non-
communication of entries in an ACR results in civil
consequences. Here, the appellant had been demanding
copies of her ACRs not only with the respondents but had
made such prayer before the Tribunal and thereafter also
before the High Court. On account of inadvertent weeding out
Civil Appeal No.2536 of 2011 Page 25 of 28
of her service records, the same could not be produced even
before this Court. The respondents accept that the weeding
out of such records was inadvertent despite pendency of
judicial proceedings in that regard. Coupled with the fact that
the appellant was assessed on the basis of 19.5 points which
was not provided in the promotion policy of the Railways dated
22.05.1996, in our view, an adverse inference deserves to be
drawn against the respondents in that regard.
To reiterate, various factors referred to above when taken
cumulatively, it is clear that the appellant has been prejudiced
by the non-supply of her ACRs, destruction of her service
records and award of points in fraction. Though the appellant
was assessed under the prevailing promotion policy of the
Railways, we find sufficient material on record to hold that
she was not treated fairly in the matter. Her candidature could
have been considered in a better manner, if she had been
supplied her ACRs enabling her to seek redressal, if she was
not satisfied by the entries therein and her service records had
not been weeded out. We, therefore, find the grievance as
raised by the appellant to be justified.
Civil Appeal No.2536 of 2011 Page 26 of 28
18. Having found that the assessment of the appellant was
not as desired by law, the question arises as to the relief that
could be granted to her. The meeting of the SC was held on
10.06.2006 wherein the proposal for empanelment of six
officers to the HAG was recommended. This recommendation
was approved by the Appointments Committee of the Cabinet
on 12.11.2006. The appellant attained the age of
superannuation on 31.05.2008. Since we have found that the
appellant was not fairly treated while assessing her
performance, she would be entitled to pensionary benefits in
₹
the HAG to 22,400-24,500/- (refixed) of the IRMS. As we did
not have the benefit of perusing the service record of the
appellant and as we have drawn inference against the
respondents in that regard, we are of the view that no
monetary relief in the form of a direction to pay her arrears of
salary from the notional date of promotion of the six officers
who were so promoted till the date of her superannuation can
be granted. Though it was urged by relying upon the decision
18
in State of Kerala and others Vs. E.K. Bhaskaran Pillai
that the principle of ‘no work no pay’ could not be applied as
18
C.A. 7953 of 2004 decided on 17.04.2007
Civil Appeal No.2536 of 2011 Page 27 of 28
a rule of thumb in such cases, we are of the view that in the
facts of the present case, a direction for re-fixation of the
appellant’s pension in the HAG grade would meet the ends of
justice.
19. For aforesaid reasons, we set aside the judgment dated
22.05.2007 passed by the Tribunal in OA No.2612/2006 as
well as judgment of the High Court dated 09.01.2009 in WP(C)
No.4123/2007. The appellant is held entitled to notional
promotion in HAG grade ₹ 22,400-24,500/- and to receive
pensionary benefits in that grade alongwith other benefits
admissible in that regard. The arrears be accordingly paid to
the appellant within a period of two months from today.
The civil appeal is allowed in aforesaid terms leaving the
parties to bear their own costs. The pending interlocutory
application is also disposed of.
…………………………..J.
[ J. K. MAHESHWARI ]
….…..………………………..J.
[ ATUL S. CHANDURKAR ]
NEW DELHI,
MAY 26, 2026.
Civil Appeal No.2536 of 2011 Page 28 of 28