SAROJ KUMAR Vs. U.O.I & ORS.
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 6081 of 2015, Judgment Date: Aug 18, 2015
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6081 OF 2015
(Arising out of S.L.P. (Civil) No. 25572 of 2014)
Saroj Kumar … Appellant
Versus
Union of India and others …Respondents
J U D G M E N T
Prafulla C. Pant, J.
This appeal is directed against judgment and order dated 27.2.2014,
passed by the High Court of Judicature at Allahabad in Writ – A No. 50733
of 2012 whereby the High Court has allowed the petition and set aside the
order dated 16.1.2012 passed by the Central Administrative Tribunal,
Allahabad Bench (for short “the Tribunal”) in Original Application (OA) No.
658 of 2011. By said order the Tribunal (CAT) had directed that the claim
by the appellant Saroj Kumar for promotion be considered ignoring earlier
uncommunicated entries of Annual Confidential Reports (ACRs). The
controversy in the present case relates to the downgrading ACRs of the
appellant without giving him any opportunity, which were later communicated
and representation made by the appellant was also considered and rejected.
We have heard learned counsel for the parties and perused the papers on
record.
Succinctly stated, the facts are that the appellant Saroj Kumar was
selected through Civil Service Examination, 1985, and was allotted Indian
Defence Accounts Service (for short “IDAS”). On 29.1.1996 he was promoted
as Junior Administrative Officer with effect from 12.1.1996. He was
promoted in the pay scale of Rs.14200-18200 vide order dated 10.11.2000 and
was given Selection Grade with effect from 5.5.2000. Later, on 14.6.2004
he was posted as Joint Controller of Defence Accounts, Jabalpur (M.P.). A
DPC was convened for promotion in the Senior Administrative Grade on
10.5.2006. It is pleaded by the appellant that to his utter shock,
ignoring him, juniors to him were promoted.
Having aggrieved with the denial of promotion, the appellant, in the first
round of litigation, filed OA No. 640 of 2006 before CAT, Allahabad Bench,
challenging the proceedings of the DPC, and granting promotion to the
junior officers. The Tribunal, vide order dated 18.9.2008, disposed of the
OA remitting the matter back to the respondent authorities for
communication of annual confidential reports and to consider the case of
the appellant afresh, keeping in mind the law laid down by the Apex Court
in Dev Dutt v. Union of India and others[1]. In response to said order,
the appellant was communicated the annual confidential reports and he
submitted representation on 29.7.2009 to the respondent authorities
pleading that in Abhijit Ghosh Dastidar v. Union of India and others[2] it
has been held that if a grading falling below the benchmark, has not been
communicated to the concerned employee, it has to be ignored while
considering the promotion of such employee. However, vide order dated
22.1.2010, the respondent authorities rejected the representation against
downgrading of remarks by Reviewing Authority and upheld the ACRs for the
period 1999-2000, 21.6.2000 to 31.3.2001 and 1.4.2001 to 31.3.2002, which,
according to the appellant, should have been treated uncommunicated.
As such, in the second round the appellant filed OA No. 490 of 2010 before
the Tribunal challenging the rejection of the representation by the
respondent authorities. The Tribunal was pleased to allow the OA vide
order dated 27.4.2010 and set aside the order dated 22.1.2010 and once
again remitted the matter back to the respondent authorities for
reconsideration of the representation of the appellant. Aggrieved by the
same, the respondent authorities filed Civil Miscellaneous Writ Petition
No. 8357 of 2011 before Allahabad High Court, which was dismissed on
21.2.2011. While dismissing the writ petition, the High Court observed
that alleged downgrading of the ACRs of the appellant by the then Reviewing
Authority (against the grading recorded by the Assessing Officer and the
Reporting Officer) was without any material available on record. The High
Court further observed that the decision of the competent authority is
simply reiteration of downgrading of the three entries by the Reviewing
Officer, by observing that the Reviewing Officer has downgraded the entries
consciously based on work parameters. It further observed that if the
complaints were there, the same should have been mentioned while
downgrading the entries. The respondents, vide order dated 23.3.2011,
after considering the matter afresh, again found no substance in the
representation and rejected the same.
In the third round, appellant filed OA No. 658 of 2011 before the Tribunal
challenging the order dated 23.3.2011, passed by the authorities. Said OA
was also allowed by the Tribunal on 16.1.2012, and the order dated
23.3.2011 was set aside with further direction to the respondent to
reconstitute the Review DPC and reconsider the case of the appellant.
Aggrieved by said order of the Tribunal, the respondents filed Writ - A No.
50733 of 2012, which is allowed vide impugned order challenged before us.
On behalf of respondent No. 4, Deputy Controller of Defence Accounts has
filed its counter affidavit. Relevant paragraphs of the same are
reproduced below: -
“7. The Hon’ble High Court, by the impugned judgment and order held that
the issue in the present case is not with regard to considering the claim
of the petitioner ignoring the uncommunicated entries, and there is no such
prayer in the O.A. filed by the petitioner nor has the Hon’ble Tribunal
directed the reconsideration of the claim of the petitioner for promotion
ignoring the uncommunicated entries through review DPC; subsequent to the
first order of the Hon’ble Tribunal, the uncommunicated entries were made
available to the petitioner and he made a representation against the
entries; this representation was rejected, leading to the filing of another
OA 490/2010 by the petitioner, wherein the Hon’ble Tribunal held that the
order on representation was not a reasoned order and directed
reconsideration of the representation in the light of law laid down by this
Hon’ble Court in Dev Dutt vs. Union of India & Ors. (2008) 8 SCC 725; W.P.
8357/2011 filed thereafter was dismissed by the Hon’ble High Court by order
dated 21.2.2011 holding that the complaints which led to the downgrading of
the ACRs of the petitioner and the reasons for relying on the complaints
have not been recorded in the order rejecting the representation; if the
petitioner wanted his claim for promotion considered ignoring the
uncommunicated ACRs, he should have challenged the order of the Hon’ble
Tribunal dated 27.4.2010 in O.A. 490/2010 and that of the Hon’ble High
Court dated 21.2.2011 in W.P. 8357/2011; the Hon’ble Tribunal, by order
dated 16.1.2012 in O.A. 658/2011 has not recorded any reasons for
disagreeing with the conclusions drawn by the competent authority in its
detailed order supported by reasons. The Hon’ble High Court thus remanded
the matter back to the Hon’ble Tribunal to examine the merits of the order
rejecting the representation of the petitioner.”
xxx xxx xxx
“9. It is strongly denied that the adverse entries remained
uncommunicated because of active concealment by the respondents resulting
in violation of fundamental rights of the petitioner and the principles of
natural justice. It is submitted that as per DOPT OM dated 11.5.1990,
communication was mandatory only in cases were adverse entry was made in
the ACR. Since the gradings in the relevant ACRs of the petitioner were
not adverse but below bench mark, they were not communicated to him.
However, during the pendency of the first of the OAs filed by the
petitioner, O.A. 640/2006, this Hon’ble Court rendered judgment in Dev Dutt
vs. Union of India & Ors. (2008) 8 SCC 725. In view of the law laid down
in Dev Dutt’s case, the Hon’ble Triobunal, by order dated 18.9.2008 in O.A.
640/2006, directed the authorities to reconsider the case of the
petitioner. In compliance of the order of the Hon’ble Tribunal in O.A.
640/2006, the confidential reports for the relevant period 1999-2000,
21.6.2000 – 31.3.2001 and 2001-2002 were made available to the petitioner,
and his representation was considered by the competent authority.”
xxx xxx xxx
“11. It is respectfully submitted that the directions contained in paras
43 and 44 of this Hon’ble Court in Dev Dutt’s case that the below bench
mark entry be communicated to the employee and his representation be
decided, and the directions in para 37 “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……” have been followed in letter and spirit. The
ACRs of the petitioner were written by the PCDA/CDA as reporting officer,
reviewed by the PCDA (Pensions)/Addl. CGDA accepted by CGDA. The
representations of the petitioner have been considered by higher authority,
namely, two different Secretaries (Defence Finance) and speaking orders
issued. Since there is no upgradation of below bench mark gradings, there
is no necessity for holding review DPC.”
xxx xxx xxx
“13. The Hon’ble High Court has correctly found that the below bench mark
entries were communicated to the petitioner as per the directions of the
Hon’ble Tribunal and Hon’ble High Court, and the issue that remains is not
with respect to non-communication of entries but with regard to whether the
representation of the petitioner has been considered objectively and order
passed stating the complaints received and giving reasons for relying on
the said complaints for downgrading the entries.”
From the above paragraphs of the counter affidavit it is clear that after
first round of litigation i.e. OA No. 640 of 2006, concluded vide order
dated 18.9.2008, passed by the Tribunal, communication of the entries, due
to which the appellant’s promotion was affected, was made and
representation was submitted by the appellant on 12.6.2009. It is also
clear from the record that the representation of the appellant was rejected
vide order dated 22.1.2010. Consequent to subsequent direction of the
Tribunal in second round of litigation, as affirmed by the High Court in
Civil Miscellaneous Writ Petition No. 8357 of 2011, the matter has been
reconsidered and rejected. In the above circumstances, after communication
of the entries made to the appellant and subsequent rejection of the
representation, now, the law laid down in the cases of Dev Dutt v. Union of
India (supra), Abhijit Ghosh Dastidar v. Union of India and others (supra),
and Sukhdev Singh v. Union of India[3], is of little help to the present
appellant for the reason that in the present case not only the ACRs have
been communicated to the appellant, his representation too has been
rejected.
In our opinion, the High Court has rightly taken note of the fact that on
conclusion of second round of litigation neither there was direction by the
Tribunal nor by the High Court to ignore the entries in question (after
rejection of the representation against it) for promotion of the appellant
from the date when his juniors were promoted. In the present round, the
Tribunal has erred in directing the authorities to consider the case of the
appellant for promotion from the date when his juniors were promoted,
ignoring the remarks, which had been communicated after first round of
litigation. We are in agreement with the High Court that after the ACRs
have been communicated and representation has been rejected, the Tribunal
should not have treated the remarks uncommunicated.
Therefore, we do not find any error in the impugned order passed by the
High Court.
Accordingly the appeal is dismissed. There shall be no order as to costs.
.….................................J.
[Dipak Misra]
......................................J.
[Prafulla C. Pant]
New Delhi;
August 18, 2015
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[1] (2008) 8 SCC 725
[2] (2009) 16 SCC 146
[3] (2013) 9 SCC 566