Full Judgment Text
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 31.05.2012
+ W.P.(C) 5042/2002
UOI & ANR ... Petitioner
versus
V. S. ARORA & ORS ... Respondent
Advocates who appeared in this case:
For the Petitioner : Mr Ravinder Agarwal with Mr Amit Yadav
For the Respondent : Mr Abhay S. Kushwaha with Ms Vandana Sharma and
Mr Abhigya.
AND
+ W.P.(C) 606/2012
UNION OF INDIA AND ANR ... Petitioner
versus
GOVIND JHA AND ANR ... Respondent
Advocates who appeared in this case:
For the Petitioner : Mr Rajesh Katyal
For the Respondent No.1 : Mr Govind Jha -in-person
For the Respondent No.2 : Mr Naresh Kaushik with Ms Amita Kalkal Chaudhary
and Mr Aditya Sharda
AND
+ W.P.(C) 3298/2011
UNION OF INDIA AND ANR
... Petitioner
WP (C) No.5042.02&ORS Page 1 of 25
versus
R N KURMI & ORS ... Respondent
Advocates who appeared in this case:
For the Petitioner : Mr R. V. Sinha with Mr R. N. Singh and Mr A. S. Singh
For the Respondent No.1 : Ms Jyoti Singh, Sr Advocate with Ms Tina Bajwa and
Ms Sahila Lamba
For the Respondent No.2 : Mr Naresh Kaushik with Ms Amita Kalkal Chaudhary
and Mr Aditya Sharda
AND
+ W.P.(C) 3300/2011
UNION OF INDIA AND ANR ... Petitioner
versus
A K VERMA & ORS ... Respondent
Advocates who appeared in this case:
For the Petitioner : Mr R. V. Sinha with Mr R. N. Singh and Mr A. S. Singh
For the Respondent No.1 : Mr O. P. Kalshian
CORAM:-
HON’BLE MR JUSTICE BADAR DURREZ AHMED
HON’BLE MR JUSTICE V.K. JAIN
JUDGMENT
BADAR DURREZ AHMED, J (ORAL)
1. These writ petitions raise a common issue of law and, therefore, they
are being disposed of together. The issue before this Court in these writ
petitions is with regard to the below benchmark ACRs (Annual
Confidential Reports) which were not communicated to the employees.
WP (C) No.5042.02&ORS Page 2 of 25
The question is whether when the DPC meets, what does it have to do with
regard to these below benchmark non-communicated ACRs? Does it
ignore those ACRs or is it the requirement of law that the ACRs should be
communicated to the concerned employees even at that stage and that they
be given an opportunity to move representations against the same and after
the representations are disposed of, the DPC should be re-convened to
consider the case of the employees for promotion?
2. A series of decisions have been referred to by the learned counsel
appearing on both sides. The learned counsel appearing for the petitioners
had a twofold contention. In the first place, they submitted that the
decision in the case of Dev Dutt v. Union of India: (2008) 8 SCC 725 was
in conflict with certain other decisions of the Supreme Court including that
of Satya Narain Shukla v. Union of India: 2006 (5) SCALE 627 and K.
M. Mishra v. Central Bank of India and Others: (2008) 9 SCC 120 . It is
for this reason that the Supreme Court itself, in the case of Union of India
v. A. K. Goel: SLP (Civil) 15700/2009 by an order dated 29.03.2010, has
referred the matter to a Larger Bench. A similar order of reference has
been passed in Union of India v. Uttam Chand Nahta and Others: SLP
WP (C) No.5042.02&ORS Page 3 of 25
(Civil) No. 29515/2010 by an order dated 29.11.2010. Thus, according to
the learned counsel for the petitioners, this Court should await the decision
of the Larger Bench of the Supreme Court.
3. The second point that was urged on behalf of the petitioners was that
the decision of the Supreme Court in the case of Abhijit Ghosh Dastidar v.
Union of India (UOI) and Ors.: (2009) 16 SCC 146 has already been
interpreted by a Division Bench of this Court in the case of UOI v. Krishna
Mohan Dixit: WP(C) 6013/2010 and other connected matters decided on
08.08.2010. According to the petitioners, in the latter decision, a clear view
has been taken that below benchmark ACRs, which have not been
communicated, are not to be simply ignored. But, the employee concerned
is to be given an opportunity of making a representation against the same
after communication of the said below benchmark ACRs to him and it is
thereafter that the DPC is to consider the case of such an employee. The
learned counsel for the petitioners also submitted that another Division
Bench of this Court in a batch of matters which included WP(C) 8841/2004
and other connected matters, applied the decision in Krishna Mohan Dixit
(supra). Thus, according to them, till the Larger Bench decision comes, the
WP (C) No.5042.02&ORS Page 4 of 25
law, as interpreted by Krishna Mohan Dixit (supra) , would apply.
4. On the other hand, the respondents have submitted that starting from
the decision of the Supreme Court in Dev Dutt (supra) , the principle has
been that a below benchmark ACR, which is not communicated to the
employee, cannot be considered by the DPC while examining his case for
promotion. They submitted that in Dev Dutt (supra) , the solution provided
was that the below benchmark ACRs ought to be communicated to the
concerned employee at the stage of consideration by the DPC so that the
employee has an opportunity to represent against the same. After the
representation is disposed of, the DPC should re-convene and consider the
case of the employee. The learned counsel for the respondents submitted
that though this was the law, as laid down by the Supreme Court in Dev
Dutt (supra) , the subsequent decision in Abhijit Ghosh Dastidar (supra) ,
which is a decision rendered by a Bench of three Hon’ble Judges of the
Supreme Court, took the matter further. The Supreme Court in Abhijit
Ghosh Dastidar (supra) , affirmed the view taken by Dev Dutt (supra) to
the extent that a below benchmark ACR, if not communicated, cannot be
considered by the DPC. However, the Supreme Court in Abhijit Ghosh
WP (C) No.5042.02&ORS Page 5 of 25
Dastidar (supra) , further directed that such ACRs should not be
considered. Therefore, according to the respondents, the question of
communicating the below benchmark ACRs at the stage of the
consideration by the DPC, does not at all arise and all that needs to be done
is that the below benchmark ACRs ought to be ignored from the purview of
consideration.
5. The learned counsel for the respondents further submitted that the
view in Abhijit Ghosh Dastidar (supra) has been affirmed and followed in
subsequent decisions of the Supreme Court, which includes the decision in
the case of Union of India v. J. S. Garg: Civil Appeal No. 5319/2003 ,
decided on 24.11.2009 and Union of India v. Ranjana Kale: SLP (C)
No. 29929/2010 decided on 29.11.2010 as also in the case of Union of
India v. N.K. Bhola: Civil Appeal No. 6937/2011 decided on 16.03.2012.
6. The learned counsel for the respondents also pointed out that, in fact,
even the Union of India has understood the decision in Abhijit Ghosh
Dastidar (supra) to mean that the below benchmark ACRs ought to be
ignored. According to them, this is amply displayed by the fact that in
Union of India and Anr. v. Sunil Mathur : SLP (C) No. 7623/2011 , the
WP (C) No.5042.02&ORS Page 6 of 25
learned Additional Solicitor General appearing for the Union of India stated
that in view of the judgment of the Supreme Court in Abhijit Ghosh
Dastidar (supra) , they may be permitted to withdraw the Special Leave
Petition and the Supreme Court permitted such withdrawal. The said order
was passed in Sunil Mathur (supra) on 24.01.2012.
7. It was, therefore, contended by the learned counsel for the
respondents that the decision of this court in K. M. Dixit (supra),
interpreting the Supreme Court decision in Abhijit Ghosh Dastidar (supra),
would no longer hold good in view of the fact that subsequently the
Supreme Court in the case of Sunil Mathur (supra) as also in the case of
N. K. Bhola (supra) , have accepted and applied the view taken by the
Supreme Court in Abhijit Ghosh Dastidar (supra) of ignoring the below
benchmark ACRs.
8. In order to consider the rival contentions, it would be necessary for
us to trace the chronology of decisions on the subject. The first decision
that we need to refer to is that of Satya Narain Shukla (supra) , wherein the
Supreme Court observed as under:
“The appellant also argued that the remarks made in the ACR
were not communicated to him. It was also urged by the
appellant that this Court should direct the authorities to
WP (C) No.5042.02&ORS Page 7 of 25
streamline the whole procedure so that even remarks like 'good'
or 'very good' made in ACRs should be made compulsorily
communicable to the officers concerned so that an officer may
not lose his chance of empanelment at a subsequent point of his
service. In our view, it is not our function to issue such
directions. It is for the Government to consider how to
streamline the procedure for selection. We can only examine if
the procedure for selection as adopted by the Government is
unconstitutional or otherwise illegal or vitiated by arbitrariness
and mala fides .”
9. A plain reading of the above extracted portion of the said decision
indicates that the appellant before the Supreme Court had sought a direction
from the Court that the authorities be asked to streamline the entire
procedure so that even remarks like “good” or “very good” made in the
ACRs, should be made compulsorily communicable to the officers
concerned so that the officer may not lose his chances of empanelment at a
subsequent point of his service. The Supreme Court, of course, declined to
give such a direction. But, at the same time, it also observed that the Court
can only examine if the procedure for selection, as adopted by the
Government, was unconstitutional or otherwise illegal or vitiated by
arbitrariness and mala fides . In other words, the Supreme Court in Satya
Narain Shukla (supra) , while it refused to give any direction to the
WP (C) No.5042.02&ORS Page 8 of 25
concerned authorities to streamline and /or adopt a particular procedure, it
also kept the issue alive by observing that where the constitutionality of the
procedure for selection was found to be illegal or vitiated by arbitrariness
and or mala fide s, the courts would step in.
10. This is exactly what has been done in Dev Dutt (supra) . There, the
Supreme Court examined the constitutionality of the procedure of not
communicating the below benchmark ACRs. The Supreme Court found
that such a step meant that it would violate the principles of natural justice
and would also be arbitrary and, therefore, would be contrary to Article 14
of the Constitution of India. Therefore, the Supreme Court came to the
conclusion that below benchmark ACRs have to be communicated to the
concerned officer/employee. The exact words used by the Supreme Court
in this connection are as under:-
“14. In our opinion, every entry (and not merely a poor or
adverse entry) relating to an employee under the State or an
instrumentality of the State, whether in civil, judicial, police or
other service (except the military) must be communicated to
him, within a reasonable period, and it makes no difference
whether there is a bench mark or not. Even if there is no bench
mark, non-communication of an entry may adversely affect the
employee’s chances of promotion (or getting some other
benefit), because when comparative merit is being considered
WP (C) No.5042.02&ORS Page 9 of 25
for promotion (or some other benefit) a person having a ‘good’
or ‘average’ or ‘fair’ entry certainly has less chances of being
selected than a person having a ‘very good’ or ‘outstanding’
entry.
xxxx xxxx xxxx xxxx
39. In the present case, we are developing the principles of
natural justice by holding that fairness and transparency in
public administration requires that all entries (whether poor,
fair, average, good or very good) in the Annual Confidential
Report of a public servant, whether in civil, judicial, police or
any other State service (except the military), must be
communicated to him within a reasonable period so that he can
make a representation for its upgradation. This in our opinion is
the correct legal position even though there may be no
Rule/G.O. requiring communication of the entry, or even if
there is a Rule/G.O. prohibiting it, because the principle of non-
arbitrariness in State action as envisaged by Article 14 of the
Constitution in our opinion requires such communication.
Article 14 will override all rules or government orders.
40. We further hold that when the entry is communicated to
him the public servant should have a right to make a
representation against the entry to the concerned authority, and
the concerned authority must decide the representation in a fair
manner and within a reasonable period. We also hold that the
representation must be decided by an authority higher than the
one who gave the entry, otherwise the likelihood is that the
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.
WP (C) No.5042.02&ORS Page 10 of 25
xxxx xxxx xxxx xxxx
45. 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
arbitrary, and as such violative of Article 14 of the Constitution.
xxxx xxxx xxxx xxxx
47. We are informed that the appellant has already retired
from service. However, if his representation for upgradation of
the ‘good’ entry is allowed, he may benefit in his pension and
get some arrears. Hence we direct that the ‘good’ entry of 1993-
94 be communicated to the appellant forthwith and he should
be permitted to make a representation against the same praying
for its upgradation. If the upgradation is allowed, the appellant
should be considered forthwith for promotion as Superintending
Engineer retrospectively and if he is promoted he will get the
benefit of higher pension and the balance of arrears of pay
along with 8% per annum interest.”
11. Thereafter, the decision in the case of K. M. Mishra (supra) , decided
on 16.09.2008 needs to be considered. Here, the Supreme Court, while it
referred to its earlier decision in Satya Narain Shukla (supra) , it appears
that the decision in Dev Dutt (supra) had not been brought to the notice of
the Supreme Court, while it was considering the case of K. M. Mishra
(supra) . However, the Supreme Court, following Satya Narain Shukla
(supra) , made the following observations:-
WP (C) No.5042.02&ORS Page 11 of 25
“17. Mr. Srivastava then submitted that in the preceding years
the appellant had ‘Excellent’ ratings and in the year 1995 he
had ‘Very Good’. The rating ‘Good’ for the year 1996-97 was
thus a climb down and it was incumbent upon the authorities to
intimate the appellant about his ratings for the two years in
question. Since no intimation was given to the appellant the
ratings for those two years should not have been taken into
account and instead the ratings for the earlier years should have
been considered for the purpose of promotion. We are unable
to accept the submission. In Satya Narain Shukla v. Union of
India and Ors .: (2006) 9 SCC 69 it was held and observed as
follows:
“29. The appellant also argued that the remarks
made in the ACR were not communicated to him. It
was also urged by the appellant that this Court should
direct the authorities to streamline the whole procedure
so that even remarks like "good" or "very good" made
in ACRs should be made compulsorily communicable
to the officers concerned so that an officer may not lose
his chance of empanelment at a subsequent point of his
service. In our view, it is not our function to issue such
directions. It is for the Government to consider how to
streamline the procedure for selection. We can only
examine if the procedure for selection as adopted by the
Government in unconstitutional or otherwise illegal or
vitiated by arbitrariness and mala fides .””
12. This takes us to consider the next decision and that is in the case of
Abhijit Ghosh Dastidar (supra) . We may point out straightaway that in the
series of decisions referred to by the counsel on both sides this is the only
decision which has been rendered by a Bench of three Hon’ble Judges of
the Supreme Court. All the other decisions are of two Hon’ble Judges of
WP (C) No.5042.02&ORS Page 12 of 25
the Supreme Court. The Supreme Court in Abhijit Ghosh Dastidar (supra)
held as under:-
“4. ……….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 to get 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 above referred decision 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.
5. Learned Counsel appearing for the appellant has pointed
out that the officer who was immediately junior in service to the
appellant was given promotion on 28.08.2000. Therefore, the
appellant also be deemed to have been given promotion from
28.08.2000. Since the appellant had retired from service, we
make it clear that he is not entitled to any pay or allowances for
the period for which he had not worked in the Higher
Administrative Grade Group-A, but his retrospective promotion
from 28.08.2000 shall be considered for the benefit of re-
fixation of his pension and other retrial benefits as per rules.”
(underlining added)
WP (C) No.5042.02&ORS Page 13 of 25
13. Analyzing the above extracted portion from the said decision in
Abhijit Ghosh Dastidar (supra) , we find that the Supreme Court had
affirmed the decision in Dev Dutt (supra) , when it observed that – “the
same view has been reiterated in the above referred decision relied upon by
the appellant”. The above referred decision related to Dev Dutt (supra).
The principle that was culled out by Abhijit Ghosh Dastidar (supra) from
the decision in Dev Dutt (supra) was that non-communication of an ACR
would be arbitrary and would be violative of Article 14 of the Constitution.
The reasons for this were that the non-communication of an entry of an
ACR of a public servant has civil consequences because it could affect his
chances for promotion or to receive any other benefits.
14. However, the Supreme Court in Abhijit Ghosh Dastidar (supra)
went further and observed categorically that, therefore, the entries “good”,
if at all granted to the appellant, ought not to have been taken into
consideration for being considered for promotion to the higher grade. What
this meant was that the below benchmark ACRs, which had not been
communicated to an employee, ought not to be taken into consideration for
the purposes of considering the promotion of that employee to a higher
WP (C) No.5042.02&ORS Page 14 of 25
grade. We must also distinguish between the stage when ACRs are written
and the stage when they are considered by the DPC. What Dev Dutt
( supra ) and, indeed, Abhijit Ghosh Dastidar ( supra) hold in unison is that
the ACRs must be communicated to the concerned employee/officer soon
after it is written. Beucase, its non-communication is contrary to the
provisions of article 14 of the Constitution. But, this is at the stage when
the ACRs are recorded or shortly thereafter. The objective of
communicating the ACRs is two-fold. In the first place, as an element of
natural justice, the officer concerned gets an opportunity of representing
against the ACR before it is too late. Secondly, it also informs and warns
the officer concerned that his performance is not upto the mark so that he
may improve himself in the next year. However, at the stage of the DPC,
the ACRs already stand crystallized and their communication then may not
serve any fruitful purpose apart from informing the concerned
employee/officer and, perhaps, enabling him to represent against it. But,
the second aspect of improvement is lost. Consequently, at the stage of the
DPC meeting the practical approach would be to not consider the
uncommunicated ACRs as held in Abhijit Ghosh Dastidar ( supra ).
WP (C) No.5042.02&ORS Page 15 of 25
15. It is further to be noted that the directions given by the Supreme
Court in the subsequent paragraphs, that is, in paragraph 5 of the said
decision were in respect of the particular case before the Supreme Court
and the Supreme Court had merely directed that as the appellant therein had
retired from service, he would not be entitled to any pay or allowance for
the period for which he had not worked in the Higher Administrative
Grade. However, it had directed that his promotion would be retrospective
with effect from 28.08.2000 and that should be considered for the benefit of
re-fixation of his pension and retiral benefits and other benefits as per rules.
We are not going by the specific directions given by the Supreme Court in
the facts of that case, but by the general principles of law declared by the
Supreme Court in the earlier portion of the said decision which is set out in
paragraph 4 of the same. The Supreme Court did two things. First of all, it
affirmed the view taken by Dev Dutt (supra) to the extent that non-
communication of an ACR would be arbitrary and would be violative of
Article 14 of the Constitution. Secondly, it concluded that such entries,
which are not communicated, should not be taken into consideration for
being considered for promotion to the higher grade. Thus, while Dev Dutt
(supra) had been affirmed by the Supreme Court in Abhijit Ghosh Dastidar
WP (C) No.5042.02&ORS Page 16 of 25
(supra) on the first aspect, as regards what has to be done with a non-
communicated below benchmark ACR, the Supreme Court in Abhijit
Ghosh Dastidar (supra) took the view that such an ACR ought not to be
considered.
16. We, then, have the decision of the Supreme Court in the case of
Union of India v. R.K. Anand: Civil Appeal No. 7061/2002 decided on
27.11.2008. Although this decision of the Supreme Court is subsequent to
the decision in Abhijit Ghosh Dastidar (supra) , it refers only to the
decision in Dev Dutt (supra) . Apparently, the decision in Abhijit Ghosh
Dastidar (supra) had not been pointed out by the counsel appearing in that
matter. Anyhow, all that R. K. Anand (supra) decides is that it follows the
decision in Dev Dutt (supra).
17. Then comes the decision of the Supreme Court in the case of J. S.
Garg (supra) . The Supreme Court, in this case, held that in view of the
decision in the case of Dev Dutt (supra) , which had been affirmed by a
Three-Judge Bench in the case of Abhijit Ghosh Dastidar (supra) , the
appeal was liable to be dismissed. All that this decision shows is that the
WP (C) No.5042.02&ORS Page 17 of 25
line of decisions starting from Dev Dutt (supra) and ending with Abhijit
Ghosh Dastidar (supra) was being followed by the Supreme Court.
18. However, in A.K. Goel (supra) , the following order was passed:-
“In view of the apparent conflict between the decisions of this
Court in Dev Dutt Vs. Union of India & Ors. 2008 (8) SCC 725
on the one hand and Satya Narain Shukla Vs. Union of India
2006 (9) SCC 69 and K. M. Mishra Vs. Central Bank of India
and Others 2008 (9) SCC 120, these appeals are referred to a
Larger Bench. Let the matter be placed before the Hon’ble The
Chief Justice of India for this purpose.”
19. A similar reference was made in Uttam Chand Nahta (supra) on
29.11.2010. The very same Bench, which made the reference in Uttam
Chand Nahta (supra) , on the same day, also decided the case in Ranjana
Kale (supra) , where the Supreme Court passed the following order:-
“It is not in dispute that the issue raised in this special leave
petition is directly covered by the decision of this Court in
Abhijit Ghosh Dastidar vs. Union of India & Ors. reported in
(2009) 16 SCC 146. Following the same, the special leave
petition is dismissed.”
20. We then have the case of Sunil Mathur (supra) , wherein the learned
Additional Solicitor General who appeared for the Union of India stated
that in view of the judgment of the Supreme Court in Abhijit Ghosh
WP (C) No.5042.02&ORS Page 18 of 25
Dastidar (supra) , the petitioners (Union of India and Others) be permitted
to withdraw the Special Leave Petition. Consequently, the Supreme Court
granted the permission and dismissed the Special Leave Petition as
withdrawn. While doing so, it also directed the petitioners to comply with
the orders of the Central Administrative Tribunal within a period of four
months from that date. Therefore, considering the circumstance, as
indicated in the Sunil Mathur (supra) , we are in agreement with the
learned counsel for the respondents that it was even the understanding of
the Union of India that the decision in Abhijit Ghosh Dastidar (supra) was
the determinative and conclusive ruling holding the field.
21. Finally, we come to the case of N. K. Bhola (supra) . The Special
Leave Petition in N. K. Bhola (supra) came up for hearing on 03.12.2010.
On that date, in view of the order dated 29.09.2010 passed in SLP(C)
No. 29515/2010 [ Uttam Chand Nahta (supra) ], whereby the matter was
referred to a Larger Bench, the Supreme Court issued notice. Thereafter,
the respondents in N. K. Bhola (supra) , filed an IA being IA 1/2011 in that
matter requesting the Supreme Court to modify its order dated 03.12.2010
and to post the matter for hearing in the interest of justice. In the said
WP (C) No.5042.02&ORS Page 19 of 25
application, the following averments were made:-
“2. That in SLP(C) No. 29515 of 2010 while passing the
order dated 29.11.10, this Hon’ble Court had referred to
th
another order of two judges Bench dated 29 March 2010 to the
following effect.
“In view of the apparent conflict between the decisions
of this Court in Dev Dutt Vs. Union of India & Ors.
2008 (8) SCC 725 on the one hand and Satya Narain
Shukla Vs. Union of India 2006 (9) SCC 69 and K. M.
Mishra Vs. Central Bank of India and Others 2008 (9)
SCC 120, these appeals are referred to a Larger Bench.
Let the matter be placed before the Hon’ble The Chief
Justice of India for this purpose.”
It is also brought to our notice the decision of three
judges Bench reported in 2009(16) SCC 146.
In view of the fact that the similar issue/ matter has
been referred to Larger Bench, we feel that this issue is
also be considered by the Larger Bench. Accordingly,
we order notice and post the matter alongwith Civil
Appeal of 2010 and SLP(C) No. 15770 of 2009 etc.
Both the parties are directed to maintain status quo
prevailing as on date until further orders.
Counsel of both the parties are permitted to raise all
points before the Larger Bench.”
th
The True copy of order dated 29 November 2010 and the true
copy of order dated 03.12.2010 of this Court are annexed
herewith as Annexure R-1 and Annexure R-2 respectively.
3. The respondent No. 1 respectfully submit that though the
case of Dastidar 2009 (16) SCC 146 was brought to the notice
of the reference Bench but the court was not apprised that the
case of Dev Dutt Vs. UOI & Ors., 2008 (8) SCC 725 was
WP (C) No.5042.02&ORS Page 20 of 25
followed in three Judge Bench decision reported in Abhijit
Ghosh Dastidar Vs. UOI 2009 (16) SCC 146.
4. As the controversy has already been laid to rest by a
Larger Bench in Abhijit Ghosh Dastidar case, there is no need
for consideration of the same issue by the Larger Bench and
there is no conflict of judgments of this Hon’ble Court.”
22. Thereafter, on 21.02.2012, when the said IA No. 1/2011 came up for
hearing, the Supreme Court issued notice thereon. The learned counsel for
the appellant/non-applicant waived service of notice in the application and
prayed for time to seek instructions on the question as to whether or not the
issue raised in the appeal before the Supreme Court was concluded by a
Three-Judge Bench decision of the Supreme Court in Abhijit Ghosh
Dastidar (supra) . On 16.03.2012, when the matter was again placed before
the Supreme Court, it allowed IA No. 1/2011. The main appeal was also
taken up for consideration and the Supreme Court dismissed the appeal in
the light of the order dated 24.01.2012 passed in SLP(C) No. 7623/2011
[i.e. ( Sunil Mathur (supra) ].
23. It is, therefore, clear from the aforesaid sequence of events that the
Supreme Court and, particularly so, in N. K. Bhola (supra), accepted the
contention that the issue stands settled by Abhijit Ghosh Dastidar (supra) ,
notwithstanding the fact that a reference had been made to a Larger Bench
WP (C) No.5042.02&ORS Page 21 of 25
in the case of A. K. Goel (supra) and Uttam Chand Nahta (supra) . We are
also in agreement with the contention raised by the learned counsel for the
respondents that the decisions of Division Benches of this Court in K. M.
Dixit (supra) and WP(C) No. 8841/2004 and other connected matters,
which had been referred to by the learned counsel for the petitioners, would
lose significance in view of the clear decisions of the Supreme Court,
particularly in the case of N. K. Bhola (supra) . More so, in view of the
specific averments made in the said IA No. 1/2011 therein which was
allowed by the Supreme Court.
24. Therefore, the position that emerges is that the decision in Abhijit
Ghosh Dastidar (supra) holds the field. Now, what is it that Abhijit Ghosh
Dastidar (supra) decides? It has, in the first instance, while affirming Dev
Dutt (supra) , concluded that non-communication of an ACR is violative of
the constitutional rights of a government servant/employee. In the second
instance, it has stated that such below benchmark ACRs ought not to be
taken into consideration while the question of promotion of a particular
government servant is in contemplation. Now, that leaves us with the
further question as to what is to be done after we ignore/do not consider the
below benchmark ACRs. In this regard, we have clear guidelines contained
WP (C) No.5042.02&ORS Page 22 of 25
in Chapter 54 of the Manual on Establishment and Administration for
Central Government Offices, which have been issued by the Government of
India for DPCs (G.I., Dept. of Per. & Trg., O.M. No. 22011/5/86-Estt.(d),
th
dated the 10 April, 1989 as amended by O.M. No. 22011/5/91-Estt.(d),
th
dated the 27 March, 1997 as amended / substituted vide Dept. of Per. &
th
Trg., O.M. No. 22011/5/98-Estt.(d), dated the 6 October, 2000). The
relevant portion of the guidelines reads as under:-
“6.2.1. Confidential Rolls are the basic inputs on the basis of
which assessment is to be made by each DPC. The evaluation
of CRs should be fair, just and non-discriminatory. Hence –
(a) The DPC should consider CRs for equal number of
years in respect of all officers considered for promotion
subject to (c) below.
(b) The DPC should assess the suitability of the employees
for promotion on the basis of their Service Records and
with particular reference to the CRs for five preceding
years irrespective of the qualifying service prescribed
in the Service/ Recruitment Rules. The ‘preceding five
years’ for the aforesaid purpose shall be decided as per
the guidelines contained in the DoP&T, O M. No.
22011/9/98-Estt. (D), dated 8-9-1998, which prescribe
the Model Calendar for DPC read with OM of even
number, dated 16-6-2000. (If more than one CR have
been written for a particular year, all the CRs for the
relevant years shall be considered together as the CR
for one year.)
xxxx xxxx xxxx xxxx
WP (C) No.5042.02&ORS Page 23 of 25
(c) Where one or more CRs have not been written for any
reason during the relevant period, the DPC should
consider the CRs of the years preceding the period in
question and if in any case even these are not available,
the DPC should take the CRs of the lower grade into
account to complete the number of CRs required to be
considered as per (b) above. If this is also not possible,
all the available CRs should be taken into account.
xxxx xxxx xxxx xxxx”
25. From the above, it is clear that the DPC should consider the
confidential reports for equal number of years in respect of all the
employees considered for promotion subject to (c) mentioned above. The
latter sub-paragraph (c) makes it clear that when one or more confidential
reports have not been written for any reason during the relevant period, the
DPC should consider the CRs of the years preceding the period in question
and if, in any case, even these are not available, the DPC should take the
CRs of the lower grade into account to complete the number of CRs
required to be considered as per sub-paragraph (b) above. If this is also not
possible, all the available CRs should be taken into account. We are of the
view that the same would apply in the case of non-communicated below
benchmark ACRs. Such ACRs would be in the same position as those CRs
which have not been written or which are not available for any reason.
WP (C) No.5042.02&ORS Page 24 of 25
Thus, it is clear that below benchmark ACRs, which have not been
communicated, cannot be considered by the DPC and the DPC is then to
follow the same procedure as prescribed in paragraph 6.2.1 (c), as indicated
above.
26. In view of the foregoing discussion, the writ petitions are dismissed.
There shall be no order as to costs. The impugned orders of the Tribunal
stand modified to the extent indicated above. The compliance time is
extended by a further period of 3 months from today.
BADAR DURREZ AHMED, J
V.K. JAIN, J
MAY 31, 2012
SR
WP (C) No.5042.02&ORS Page 25 of 25
% Judgment delivered on: 31.05.2012
+ W.P.(C) 5042/2002
UOI & ANR ... Petitioner
versus
V. S. ARORA & ORS ... Respondent
Advocates who appeared in this case:
For the Petitioner : Mr Ravinder Agarwal with Mr Amit Yadav
For the Respondent : Mr Abhay S. Kushwaha with Ms Vandana Sharma and
Mr Abhigya.
AND
+ W.P.(C) 606/2012
UNION OF INDIA AND ANR ... Petitioner
versus
GOVIND JHA AND ANR ... Respondent
Advocates who appeared in this case:
For the Petitioner : Mr Rajesh Katyal
For the Respondent No.1 : Mr Govind Jha -in-person
For the Respondent No.2 : Mr Naresh Kaushik with Ms Amita Kalkal Chaudhary
and Mr Aditya Sharda
AND
+ W.P.(C) 3298/2011
UNION OF INDIA AND ANR
... Petitioner
WP (C) No.5042.02&ORS Page 1 of 25
versus
R N KURMI & ORS ... Respondent
Advocates who appeared in this case:
For the Petitioner : Mr R. V. Sinha with Mr R. N. Singh and Mr A. S. Singh
For the Respondent No.1 : Ms Jyoti Singh, Sr Advocate with Ms Tina Bajwa and
Ms Sahila Lamba
For the Respondent No.2 : Mr Naresh Kaushik with Ms Amita Kalkal Chaudhary
and Mr Aditya Sharda
AND
+ W.P.(C) 3300/2011
UNION OF INDIA AND ANR ... Petitioner
versus
A K VERMA & ORS ... Respondent
Advocates who appeared in this case:
For the Petitioner : Mr R. V. Sinha with Mr R. N. Singh and Mr A. S. Singh
For the Respondent No.1 : Mr O. P. Kalshian
CORAM:-
HON’BLE MR JUSTICE BADAR DURREZ AHMED
HON’BLE MR JUSTICE V.K. JAIN
JUDGMENT
BADAR DURREZ AHMED, J (ORAL)
1. These writ petitions raise a common issue of law and, therefore, they
are being disposed of together. The issue before this Court in these writ
petitions is with regard to the below benchmark ACRs (Annual
Confidential Reports) which were not communicated to the employees.
WP (C) No.5042.02&ORS Page 2 of 25
The question is whether when the DPC meets, what does it have to do with
regard to these below benchmark non-communicated ACRs? Does it
ignore those ACRs or is it the requirement of law that the ACRs should be
communicated to the concerned employees even at that stage and that they
be given an opportunity to move representations against the same and after
the representations are disposed of, the DPC should be re-convened to
consider the case of the employees for promotion?
2. A series of decisions have been referred to by the learned counsel
appearing on both sides. The learned counsel appearing for the petitioners
had a twofold contention. In the first place, they submitted that the
decision in the case of Dev Dutt v. Union of India: (2008) 8 SCC 725 was
in conflict with certain other decisions of the Supreme Court including that
of Satya Narain Shukla v. Union of India: 2006 (5) SCALE 627 and K.
M. Mishra v. Central Bank of India and Others: (2008) 9 SCC 120 . It is
for this reason that the Supreme Court itself, in the case of Union of India
v. A. K. Goel: SLP (Civil) 15700/2009 by an order dated 29.03.2010, has
referred the matter to a Larger Bench. A similar order of reference has
been passed in Union of India v. Uttam Chand Nahta and Others: SLP
WP (C) No.5042.02&ORS Page 3 of 25
(Civil) No. 29515/2010 by an order dated 29.11.2010. Thus, according to
the learned counsel for the petitioners, this Court should await the decision
of the Larger Bench of the Supreme Court.
3. The second point that was urged on behalf of the petitioners was that
the decision of the Supreme Court in the case of Abhijit Ghosh Dastidar v.
Union of India (UOI) and Ors.: (2009) 16 SCC 146 has already been
interpreted by a Division Bench of this Court in the case of UOI v. Krishna
Mohan Dixit: WP(C) 6013/2010 and other connected matters decided on
08.08.2010. According to the petitioners, in the latter decision, a clear view
has been taken that below benchmark ACRs, which have not been
communicated, are not to be simply ignored. But, the employee concerned
is to be given an opportunity of making a representation against the same
after communication of the said below benchmark ACRs to him and it is
thereafter that the DPC is to consider the case of such an employee. The
learned counsel for the petitioners also submitted that another Division
Bench of this Court in a batch of matters which included WP(C) 8841/2004
and other connected matters, applied the decision in Krishna Mohan Dixit
(supra). Thus, according to them, till the Larger Bench decision comes, the
WP (C) No.5042.02&ORS Page 4 of 25
law, as interpreted by Krishna Mohan Dixit (supra) , would apply.
4. On the other hand, the respondents have submitted that starting from
the decision of the Supreme Court in Dev Dutt (supra) , the principle has
been that a below benchmark ACR, which is not communicated to the
employee, cannot be considered by the DPC while examining his case for
promotion. They submitted that in Dev Dutt (supra) , the solution provided
was that the below benchmark ACRs ought to be communicated to the
concerned employee at the stage of consideration by the DPC so that the
employee has an opportunity to represent against the same. After the
representation is disposed of, the DPC should re-convene and consider the
case of the employee. The learned counsel for the respondents submitted
that though this was the law, as laid down by the Supreme Court in Dev
Dutt (supra) , the subsequent decision in Abhijit Ghosh Dastidar (supra) ,
which is a decision rendered by a Bench of three Hon’ble Judges of the
Supreme Court, took the matter further. The Supreme Court in Abhijit
Ghosh Dastidar (supra) , affirmed the view taken by Dev Dutt (supra) to
the extent that a below benchmark ACR, if not communicated, cannot be
considered by the DPC. However, the Supreme Court in Abhijit Ghosh
WP (C) No.5042.02&ORS Page 5 of 25
Dastidar (supra) , further directed that such ACRs should not be
considered. Therefore, according to the respondents, the question of
communicating the below benchmark ACRs at the stage of the
consideration by the DPC, does not at all arise and all that needs to be done
is that the below benchmark ACRs ought to be ignored from the purview of
consideration.
5. The learned counsel for the respondents further submitted that the
view in Abhijit Ghosh Dastidar (supra) has been affirmed and followed in
subsequent decisions of the Supreme Court, which includes the decision in
the case of Union of India v. J. S. Garg: Civil Appeal No. 5319/2003 ,
decided on 24.11.2009 and Union of India v. Ranjana Kale: SLP (C)
No. 29929/2010 decided on 29.11.2010 as also in the case of Union of
India v. N.K. Bhola: Civil Appeal No. 6937/2011 decided on 16.03.2012.
6. The learned counsel for the respondents also pointed out that, in fact,
even the Union of India has understood the decision in Abhijit Ghosh
Dastidar (supra) to mean that the below benchmark ACRs ought to be
ignored. According to them, this is amply displayed by the fact that in
Union of India and Anr. v. Sunil Mathur : SLP (C) No. 7623/2011 , the
WP (C) No.5042.02&ORS Page 6 of 25
learned Additional Solicitor General appearing for the Union of India stated
that in view of the judgment of the Supreme Court in Abhijit Ghosh
Dastidar (supra) , they may be permitted to withdraw the Special Leave
Petition and the Supreme Court permitted such withdrawal. The said order
was passed in Sunil Mathur (supra) on 24.01.2012.
7. It was, therefore, contended by the learned counsel for the
respondents that the decision of this court in K. M. Dixit (supra),
interpreting the Supreme Court decision in Abhijit Ghosh Dastidar (supra),
would no longer hold good in view of the fact that subsequently the
Supreme Court in the case of Sunil Mathur (supra) as also in the case of
N. K. Bhola (supra) , have accepted and applied the view taken by the
Supreme Court in Abhijit Ghosh Dastidar (supra) of ignoring the below
benchmark ACRs.
8. In order to consider the rival contentions, it would be necessary for
us to trace the chronology of decisions on the subject. The first decision
that we need to refer to is that of Satya Narain Shukla (supra) , wherein the
Supreme Court observed as under:
“The appellant also argued that the remarks made in the ACR
were not communicated to him. It was also urged by the
appellant that this Court should direct the authorities to
WP (C) No.5042.02&ORS Page 7 of 25
streamline the whole procedure so that even remarks like 'good'
or 'very good' made in ACRs should be made compulsorily
communicable to the officers concerned so that an officer may
not lose his chance of empanelment at a subsequent point of his
service. In our view, it is not our function to issue such
directions. It is for the Government to consider how to
streamline the procedure for selection. We can only examine if
the procedure for selection as adopted by the Government is
unconstitutional or otherwise illegal or vitiated by arbitrariness
and mala fides .”
9. A plain reading of the above extracted portion of the said decision
indicates that the appellant before the Supreme Court had sought a direction
from the Court that the authorities be asked to streamline the entire
procedure so that even remarks like “good” or “very good” made in the
ACRs, should be made compulsorily communicable to the officers
concerned so that the officer may not lose his chances of empanelment at a
subsequent point of his service. The Supreme Court, of course, declined to
give such a direction. But, at the same time, it also observed that the Court
can only examine if the procedure for selection, as adopted by the
Government, was unconstitutional or otherwise illegal or vitiated by
arbitrariness and mala fides . In other words, the Supreme Court in Satya
Narain Shukla (supra) , while it refused to give any direction to the
WP (C) No.5042.02&ORS Page 8 of 25
concerned authorities to streamline and /or adopt a particular procedure, it
also kept the issue alive by observing that where the constitutionality of the
procedure for selection was found to be illegal or vitiated by arbitrariness
and or mala fide s, the courts would step in.
10. This is exactly what has been done in Dev Dutt (supra) . There, the
Supreme Court examined the constitutionality of the procedure of not
communicating the below benchmark ACRs. The Supreme Court found
that such a step meant that it would violate the principles of natural justice
and would also be arbitrary and, therefore, would be contrary to Article 14
of the Constitution of India. Therefore, the Supreme Court came to the
conclusion that below benchmark ACRs have to be communicated to the
concerned officer/employee. The exact words used by the Supreme Court
in this connection are as under:-
“14. In our opinion, every entry (and not merely a poor or
adverse entry) relating to an employee under the State or an
instrumentality of the State, whether in civil, judicial, police or
other service (except the military) must be communicated to
him, within a reasonable period, and it makes no difference
whether there is a bench mark or not. Even if there is no bench
mark, non-communication of an entry may adversely affect the
employee’s chances of promotion (or getting some other
benefit), because when comparative merit is being considered
WP (C) No.5042.02&ORS Page 9 of 25
for promotion (or some other benefit) a person having a ‘good’
or ‘average’ or ‘fair’ entry certainly has less chances of being
selected than a person having a ‘very good’ or ‘outstanding’
entry.
xxxx xxxx xxxx xxxx
39. In the present case, we are developing the principles of
natural justice by holding that fairness and transparency in
public administration requires that all entries (whether poor,
fair, average, good or very good) in the Annual Confidential
Report of a public servant, whether in civil, judicial, police or
any other State service (except the military), must be
communicated to him within a reasonable period so that he can
make a representation for its upgradation. This in our opinion is
the correct legal position even though there may be no
Rule/G.O. requiring communication of the entry, or even if
there is a Rule/G.O. prohibiting it, because the principle of non-
arbitrariness in State action as envisaged by Article 14 of the
Constitution in our opinion requires such communication.
Article 14 will override all rules or government orders.
40. We further hold that when the entry is communicated to
him the public servant should have a right to make a
representation against the entry to the concerned authority, and
the concerned authority must decide the representation in a fair
manner and within a reasonable period. We also hold that the
representation must be decided by an authority higher than the
one who gave the entry, otherwise the likelihood is that the
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.
WP (C) No.5042.02&ORS Page 10 of 25
xxxx xxxx xxxx xxxx
45. 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
arbitrary, and as such violative of Article 14 of the Constitution.
xxxx xxxx xxxx xxxx
47. We are informed that the appellant has already retired
from service. However, if his representation for upgradation of
the ‘good’ entry is allowed, he may benefit in his pension and
get some arrears. Hence we direct that the ‘good’ entry of 1993-
94 be communicated to the appellant forthwith and he should
be permitted to make a representation against the same praying
for its upgradation. If the upgradation is allowed, the appellant
should be considered forthwith for promotion as Superintending
Engineer retrospectively and if he is promoted he will get the
benefit of higher pension and the balance of arrears of pay
along with 8% per annum interest.”
11. Thereafter, the decision in the case of K. M. Mishra (supra) , decided
on 16.09.2008 needs to be considered. Here, the Supreme Court, while it
referred to its earlier decision in Satya Narain Shukla (supra) , it appears
that the decision in Dev Dutt (supra) had not been brought to the notice of
the Supreme Court, while it was considering the case of K. M. Mishra
(supra) . However, the Supreme Court, following Satya Narain Shukla
(supra) , made the following observations:-
WP (C) No.5042.02&ORS Page 11 of 25
“17. Mr. Srivastava then submitted that in the preceding years
the appellant had ‘Excellent’ ratings and in the year 1995 he
had ‘Very Good’. The rating ‘Good’ for the year 1996-97 was
thus a climb down and it was incumbent upon the authorities to
intimate the appellant about his ratings for the two years in
question. Since no intimation was given to the appellant the
ratings for those two years should not have been taken into
account and instead the ratings for the earlier years should have
been considered for the purpose of promotion. We are unable
to accept the submission. In Satya Narain Shukla v. Union of
India and Ors .: (2006) 9 SCC 69 it was held and observed as
follows:
“29. The appellant also argued that the remarks
made in the ACR were not communicated to him. It
was also urged by the appellant that this Court should
direct the authorities to streamline the whole procedure
so that even remarks like "good" or "very good" made
in ACRs should be made compulsorily communicable
to the officers concerned so that an officer may not lose
his chance of empanelment at a subsequent point of his
service. In our view, it is not our function to issue such
directions. It is for the Government to consider how to
streamline the procedure for selection. We can only
examine if the procedure for selection as adopted by the
Government in unconstitutional or otherwise illegal or
vitiated by arbitrariness and mala fides .””
12. This takes us to consider the next decision and that is in the case of
Abhijit Ghosh Dastidar (supra) . We may point out straightaway that in the
series of decisions referred to by the counsel on both sides this is the only
decision which has been rendered by a Bench of three Hon’ble Judges of
the Supreme Court. All the other decisions are of two Hon’ble Judges of
WP (C) No.5042.02&ORS Page 12 of 25
the Supreme Court. The Supreme Court in Abhijit Ghosh Dastidar (supra)
held as under:-
“4. ……….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 to get 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 above referred decision 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.
5. Learned Counsel appearing for the appellant has pointed
out that the officer who was immediately junior in service to the
appellant was given promotion on 28.08.2000. Therefore, the
appellant also be deemed to have been given promotion from
28.08.2000. Since the appellant had retired from service, we
make it clear that he is not entitled to any pay or allowances for
the period for which he had not worked in the Higher
Administrative Grade Group-A, but his retrospective promotion
from 28.08.2000 shall be considered for the benefit of re-
fixation of his pension and other retrial benefits as per rules.”
(underlining added)
WP (C) No.5042.02&ORS Page 13 of 25
13. Analyzing the above extracted portion from the said decision in
Abhijit Ghosh Dastidar (supra) , we find that the Supreme Court had
affirmed the decision in Dev Dutt (supra) , when it observed that – “the
same view has been reiterated in the above referred decision relied upon by
the appellant”. The above referred decision related to Dev Dutt (supra).
The principle that was culled out by Abhijit Ghosh Dastidar (supra) from
the decision in Dev Dutt (supra) was that non-communication of an ACR
would be arbitrary and would be violative of Article 14 of the Constitution.
The reasons for this were that the non-communication of an entry of an
ACR of a public servant has civil consequences because it could affect his
chances for promotion or to receive any other benefits.
14. However, the Supreme Court in Abhijit Ghosh Dastidar (supra)
went further and observed categorically that, therefore, the entries “good”,
if at all granted to the appellant, ought not to have been taken into
consideration for being considered for promotion to the higher grade. What
this meant was that the below benchmark ACRs, which had not been
communicated to an employee, ought not to be taken into consideration for
the purposes of considering the promotion of that employee to a higher
WP (C) No.5042.02&ORS Page 14 of 25
grade. We must also distinguish between the stage when ACRs are written
and the stage when they are considered by the DPC. What Dev Dutt
( supra ) and, indeed, Abhijit Ghosh Dastidar ( supra) hold in unison is that
the ACRs must be communicated to the concerned employee/officer soon
after it is written. Beucase, its non-communication is contrary to the
provisions of article 14 of the Constitution. But, this is at the stage when
the ACRs are recorded or shortly thereafter. The objective of
communicating the ACRs is two-fold. In the first place, as an element of
natural justice, the officer concerned gets an opportunity of representing
against the ACR before it is too late. Secondly, it also informs and warns
the officer concerned that his performance is not upto the mark so that he
may improve himself in the next year. However, at the stage of the DPC,
the ACRs already stand crystallized and their communication then may not
serve any fruitful purpose apart from informing the concerned
employee/officer and, perhaps, enabling him to represent against it. But,
the second aspect of improvement is lost. Consequently, at the stage of the
DPC meeting the practical approach would be to not consider the
uncommunicated ACRs as held in Abhijit Ghosh Dastidar ( supra ).
WP (C) No.5042.02&ORS Page 15 of 25
15. It is further to be noted that the directions given by the Supreme
Court in the subsequent paragraphs, that is, in paragraph 5 of the said
decision were in respect of the particular case before the Supreme Court
and the Supreme Court had merely directed that as the appellant therein had
retired from service, he would not be entitled to any pay or allowance for
the period for which he had not worked in the Higher Administrative
Grade. However, it had directed that his promotion would be retrospective
with effect from 28.08.2000 and that should be considered for the benefit of
re-fixation of his pension and retiral benefits and other benefits as per rules.
We are not going by the specific directions given by the Supreme Court in
the facts of that case, but by the general principles of law declared by the
Supreme Court in the earlier portion of the said decision which is set out in
paragraph 4 of the same. The Supreme Court did two things. First of all, it
affirmed the view taken by Dev Dutt (supra) to the extent that non-
communication of an ACR would be arbitrary and would be violative of
Article 14 of the Constitution. Secondly, it concluded that such entries,
which are not communicated, should not be taken into consideration for
being considered for promotion to the higher grade. Thus, while Dev Dutt
(supra) had been affirmed by the Supreme Court in Abhijit Ghosh Dastidar
WP (C) No.5042.02&ORS Page 16 of 25
(supra) on the first aspect, as regards what has to be done with a non-
communicated below benchmark ACR, the Supreme Court in Abhijit
Ghosh Dastidar (supra) took the view that such an ACR ought not to be
considered.
16. We, then, have the decision of the Supreme Court in the case of
Union of India v. R.K. Anand: Civil Appeal No. 7061/2002 decided on
27.11.2008. Although this decision of the Supreme Court is subsequent to
the decision in Abhijit Ghosh Dastidar (supra) , it refers only to the
decision in Dev Dutt (supra) . Apparently, the decision in Abhijit Ghosh
Dastidar (supra) had not been pointed out by the counsel appearing in that
matter. Anyhow, all that R. K. Anand (supra) decides is that it follows the
decision in Dev Dutt (supra).
17. Then comes the decision of the Supreme Court in the case of J. S.
Garg (supra) . The Supreme Court, in this case, held that in view of the
decision in the case of Dev Dutt (supra) , which had been affirmed by a
Three-Judge Bench in the case of Abhijit Ghosh Dastidar (supra) , the
appeal was liable to be dismissed. All that this decision shows is that the
WP (C) No.5042.02&ORS Page 17 of 25
line of decisions starting from Dev Dutt (supra) and ending with Abhijit
Ghosh Dastidar (supra) was being followed by the Supreme Court.
18. However, in A.K. Goel (supra) , the following order was passed:-
“In view of the apparent conflict between the decisions of this
Court in Dev Dutt Vs. Union of India & Ors. 2008 (8) SCC 725
on the one hand and Satya Narain Shukla Vs. Union of India
2006 (9) SCC 69 and K. M. Mishra Vs. Central Bank of India
and Others 2008 (9) SCC 120, these appeals are referred to a
Larger Bench. Let the matter be placed before the Hon’ble The
Chief Justice of India for this purpose.”
19. A similar reference was made in Uttam Chand Nahta (supra) on
29.11.2010. The very same Bench, which made the reference in Uttam
Chand Nahta (supra) , on the same day, also decided the case in Ranjana
Kale (supra) , where the Supreme Court passed the following order:-
“It is not in dispute that the issue raised in this special leave
petition is directly covered by the decision of this Court in
Abhijit Ghosh Dastidar vs. Union of India & Ors. reported in
(2009) 16 SCC 146. Following the same, the special leave
petition is dismissed.”
20. We then have the case of Sunil Mathur (supra) , wherein the learned
Additional Solicitor General who appeared for the Union of India stated
that in view of the judgment of the Supreme Court in Abhijit Ghosh
WP (C) No.5042.02&ORS Page 18 of 25
Dastidar (supra) , the petitioners (Union of India and Others) be permitted
to withdraw the Special Leave Petition. Consequently, the Supreme Court
granted the permission and dismissed the Special Leave Petition as
withdrawn. While doing so, it also directed the petitioners to comply with
the orders of the Central Administrative Tribunal within a period of four
months from that date. Therefore, considering the circumstance, as
indicated in the Sunil Mathur (supra) , we are in agreement with the
learned counsel for the respondents that it was even the understanding of
the Union of India that the decision in Abhijit Ghosh Dastidar (supra) was
the determinative and conclusive ruling holding the field.
21. Finally, we come to the case of N. K. Bhola (supra) . The Special
Leave Petition in N. K. Bhola (supra) came up for hearing on 03.12.2010.
On that date, in view of the order dated 29.09.2010 passed in SLP(C)
No. 29515/2010 [ Uttam Chand Nahta (supra) ], whereby the matter was
referred to a Larger Bench, the Supreme Court issued notice. Thereafter,
the respondents in N. K. Bhola (supra) , filed an IA being IA 1/2011 in that
matter requesting the Supreme Court to modify its order dated 03.12.2010
and to post the matter for hearing in the interest of justice. In the said
WP (C) No.5042.02&ORS Page 19 of 25
application, the following averments were made:-
“2. That in SLP(C) No. 29515 of 2010 while passing the
order dated 29.11.10, this Hon’ble Court had referred to
th
another order of two judges Bench dated 29 March 2010 to the
following effect.
“In view of the apparent conflict between the decisions
of this Court in Dev Dutt Vs. Union of India & Ors.
2008 (8) SCC 725 on the one hand and Satya Narain
Shukla Vs. Union of India 2006 (9) SCC 69 and K. M.
Mishra Vs. Central Bank of India and Others 2008 (9)
SCC 120, these appeals are referred to a Larger Bench.
Let the matter be placed before the Hon’ble The Chief
Justice of India for this purpose.”
It is also brought to our notice the decision of three
judges Bench reported in 2009(16) SCC 146.
In view of the fact that the similar issue/ matter has
been referred to Larger Bench, we feel that this issue is
also be considered by the Larger Bench. Accordingly,
we order notice and post the matter alongwith Civil
Appeal of 2010 and SLP(C) No. 15770 of 2009 etc.
Both the parties are directed to maintain status quo
prevailing as on date until further orders.
Counsel of both the parties are permitted to raise all
points before the Larger Bench.”
th
The True copy of order dated 29 November 2010 and the true
copy of order dated 03.12.2010 of this Court are annexed
herewith as Annexure R-1 and Annexure R-2 respectively.
3. The respondent No. 1 respectfully submit that though the
case of Dastidar 2009 (16) SCC 146 was brought to the notice
of the reference Bench but the court was not apprised that the
case of Dev Dutt Vs. UOI & Ors., 2008 (8) SCC 725 was
WP (C) No.5042.02&ORS Page 20 of 25
followed in three Judge Bench decision reported in Abhijit
Ghosh Dastidar Vs. UOI 2009 (16) SCC 146.
4. As the controversy has already been laid to rest by a
Larger Bench in Abhijit Ghosh Dastidar case, there is no need
for consideration of the same issue by the Larger Bench and
there is no conflict of judgments of this Hon’ble Court.”
22. Thereafter, on 21.02.2012, when the said IA No. 1/2011 came up for
hearing, the Supreme Court issued notice thereon. The learned counsel for
the appellant/non-applicant waived service of notice in the application and
prayed for time to seek instructions on the question as to whether or not the
issue raised in the appeal before the Supreme Court was concluded by a
Three-Judge Bench decision of the Supreme Court in Abhijit Ghosh
Dastidar (supra) . On 16.03.2012, when the matter was again placed before
the Supreme Court, it allowed IA No. 1/2011. The main appeal was also
taken up for consideration and the Supreme Court dismissed the appeal in
the light of the order dated 24.01.2012 passed in SLP(C) No. 7623/2011
[i.e. ( Sunil Mathur (supra) ].
23. It is, therefore, clear from the aforesaid sequence of events that the
Supreme Court and, particularly so, in N. K. Bhola (supra), accepted the
contention that the issue stands settled by Abhijit Ghosh Dastidar (supra) ,
notwithstanding the fact that a reference had been made to a Larger Bench
WP (C) No.5042.02&ORS Page 21 of 25
in the case of A. K. Goel (supra) and Uttam Chand Nahta (supra) . We are
also in agreement with the contention raised by the learned counsel for the
respondents that the decisions of Division Benches of this Court in K. M.
Dixit (supra) and WP(C) No. 8841/2004 and other connected matters,
which had been referred to by the learned counsel for the petitioners, would
lose significance in view of the clear decisions of the Supreme Court,
particularly in the case of N. K. Bhola (supra) . More so, in view of the
specific averments made in the said IA No. 1/2011 therein which was
allowed by the Supreme Court.
24. Therefore, the position that emerges is that the decision in Abhijit
Ghosh Dastidar (supra) holds the field. Now, what is it that Abhijit Ghosh
Dastidar (supra) decides? It has, in the first instance, while affirming Dev
Dutt (supra) , concluded that non-communication of an ACR is violative of
the constitutional rights of a government servant/employee. In the second
instance, it has stated that such below benchmark ACRs ought not to be
taken into consideration while the question of promotion of a particular
government servant is in contemplation. Now, that leaves us with the
further question as to what is to be done after we ignore/do not consider the
below benchmark ACRs. In this regard, we have clear guidelines contained
WP (C) No.5042.02&ORS Page 22 of 25
in Chapter 54 of the Manual on Establishment and Administration for
Central Government Offices, which have been issued by the Government of
India for DPCs (G.I., Dept. of Per. & Trg., O.M. No. 22011/5/86-Estt.(d),
th
dated the 10 April, 1989 as amended by O.M. No. 22011/5/91-Estt.(d),
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dated the 27 March, 1997 as amended / substituted vide Dept. of Per. &
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Trg., O.M. No. 22011/5/98-Estt.(d), dated the 6 October, 2000). The
relevant portion of the guidelines reads as under:-
“6.2.1. Confidential Rolls are the basic inputs on the basis of
which assessment is to be made by each DPC. The evaluation
of CRs should be fair, just and non-discriminatory. Hence –
(a) The DPC should consider CRs for equal number of
years in respect of all officers considered for promotion
subject to (c) below.
(b) The DPC should assess the suitability of the employees
for promotion on the basis of their Service Records and
with particular reference to the CRs for five preceding
years irrespective of the qualifying service prescribed
in the Service/ Recruitment Rules. The ‘preceding five
years’ for the aforesaid purpose shall be decided as per
the guidelines contained in the DoP&T, O M. No.
22011/9/98-Estt. (D), dated 8-9-1998, which prescribe
the Model Calendar for DPC read with OM of even
number, dated 16-6-2000. (If more than one CR have
been written for a particular year, all the CRs for the
relevant years shall be considered together as the CR
for one year.)
xxxx xxxx xxxx xxxx
WP (C) No.5042.02&ORS Page 23 of 25
(c) Where one or more CRs have not been written for any
reason during the relevant period, the DPC should
consider the CRs of the years preceding the period in
question and if in any case even these are not available,
the DPC should take the CRs of the lower grade into
account to complete the number of CRs required to be
considered as per (b) above. If this is also not possible,
all the available CRs should be taken into account.
xxxx xxxx xxxx xxxx”
25. From the above, it is clear that the DPC should consider the
confidential reports for equal number of years in respect of all the
employees considered for promotion subject to (c) mentioned above. The
latter sub-paragraph (c) makes it clear that when one or more confidential
reports have not been written for any reason during the relevant period, the
DPC should consider the CRs of the years preceding the period in question
and if, in any case, even these are not available, the DPC should take the
CRs of the lower grade into account to complete the number of CRs
required to be considered as per sub-paragraph (b) above. If this is also not
possible, all the available CRs should be taken into account. We are of the
view that the same would apply in the case of non-communicated below
benchmark ACRs. Such ACRs would be in the same position as those CRs
which have not been written or which are not available for any reason.
WP (C) No.5042.02&ORS Page 24 of 25
Thus, it is clear that below benchmark ACRs, which have not been
communicated, cannot be considered by the DPC and the DPC is then to
follow the same procedure as prescribed in paragraph 6.2.1 (c), as indicated
above.
26. In view of the foregoing discussion, the writ petitions are dismissed.
There shall be no order as to costs. The impugned orders of the Tribunal
stand modified to the extent indicated above. The compliance time is
extended by a further period of 3 months from today.
BADAR DURREZ AHMED, J
V.K. JAIN, J
MAY 31, 2012
SR
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