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2012 DIGILAW 1303 (MAD)

Union of India v. D. R. Navalur

2012-03-12

ELIPE DHARMA RAO, M.VENUGOPAL

body2012
Judgment Common Order (ELIPE DHARMA RAO, J.) 1. Aggrieved by the orders of the Central Administrative Tribunal allowing the Original Applications filed by the contesting respondent in O.A. No. 420 of 2009 and O.A. No. 888 of 2007 by orders dated 07.12.2009 and 20.11.2009 respectively, the Department of Defence Production of the Union of India, represented by its Officers has come forward with the present writ petitions. 2. Since the question involved in both the writ petitions are similar, with the consent of the learned counsel appearing for both sides, the writ petitions were heard together and disposed of by this common order. 3. In both the writ petitions, the concerned Original Applications were filed by the respondent against the non-communication of the adverse remarks made in the Confidential Reports, which resulted in denial of promotion. 4. The contention of the applicant in both the OAs before the Tribunal was that since adverse remarks made in the Annual Confidential Reports were not communicated, though there was a circular dated 08.02.2004 issued by the DOP&T, his claim for promotion has to be considered. 5. The stand of the Department was that the overall grading given in the ACR need not be communicated, even when the grading given is below the 'bench mark' prescribed for promotion to the next higher grade. 6. After hearing the rival contentions raised, perusing the guidelines prescribed for selection and relying on the decisions of the Supreme Court in U.P. Gel Nigam & others v. Prabhat Chandra Jain & others [ (1996) 2 SCC 363 ] and Dev Dutt v. Union of India [ (2008) 8 SCC 725 , the Tribunal allowed the Original Applications and directed the Department to reconsider the case of the applicant / respondent for promotion. 7. Learned counsel for the petitioners reiterated the stand taken before the Tribunal and she would only contend that even when the grading given is below the 'bench mark', such grading given in the ACR need not be communicated as the overall grading in ACR does not change in any way even after the expunction of adverse remarks. 8. Heard the learned counsel for the parties and perused the records. 9. The question which crop for consideration in these writ petitions is as to whether the adverse remarks found in the ACR against an employee is required to be communicated or not? 10. 8. Heard the learned counsel for the parties and perused the records. 9. The question which crop for consideration in these writ petitions is as to whether the adverse remarks found in the ACR against an employee is required to be communicated or not? 10. The aforesaid question remains res integra. The Apex Court in Prabhat Chandra Jain case (cited supra) has categorically held that when a grading given to the officer in ACR for any year is below the benchmark, the authorities are bound to communicate the same to the officer to enable him to file his objections and if such downgrading is not communicated, such uncommunicated downgrading should have to be ignored. In Dev Dutt's case (cited above), the Apex Court by going one step ahead has held that all the entries made in the ACRs should be communicated by the employer and even the adverse entry 'good' should be communicated. It has to be remembered that communication of entries and giving opportunity to represent against them is because the principle of elimination is followed in selection for promotion and even a single entry could destroy the career of an officer which has otherwise been outstanding throughout. The non-communication on the part of the Department may result in grave injustice and heart-burning, and may shatter the morale of many good officers who are superseded due to this arbitrariness, while officers of inferior merit may be promoted. 11. In Dev Dutt's case, the Apex Court while considering an employee for non-communication of the adverse remarks, has observed as follows :- "26.) In our opinion, our natural sense of what is right and wrong tells us that it was wrong on the part of the respondent in not communicating the ?good? entry to the appellant since he was thereby deprived of the right to make a representation against it, which if allowed would have entitled him to be considered for promotion to the post of Superintending Engineer. entry to the appellant since he was thereby deprived of the right to make a representation against it, which if allowed would have entitled him to be considered for promotion to the post of Superintending Engineer. One may not have the right to promotion, but one has the right to be considered for promotion, and this right of the appellant was violated in the present case." Ultimately, the Apex Court held as follows :- "36.) 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. 37.) We further hold that when the entry is communicated to him the public servant should have a right to make a representation against the entry to the authority concerned, and the authority concerned must decide the representation in a fair manner and within a reasonable period. We also hold that the representation must be decided by an authority higher than the one who gave the entry, otherwise the likelihood is that the representation will be summarily rejected without adequate consideration as it would be an appeal from Caesar to Caesar. All this would be conducive to fairness and transparency in public administration, and would result in fairness to public servants. The State must be a model employer, and must act fairly towards its employees. Only then would good governance be possible." (Emphasis added) 12. In the present case, it is no doubt true that the respondent is the senior most officer in the list of Principal Scientific Officers eligible for promotion. The State must be a model employer, and must act fairly towards its employees. Only then would good governance be possible." (Emphasis added) 12. In the present case, it is no doubt true that the respondent is the senior most officer in the list of Principal Scientific Officers eligible for promotion. As per the instructions of DOPT, placement has to go by the entries in the CRs of the employees and the petitioners have not communicated any entry to the respondent. Moreover, the reason given by the petitioners for not communicating such adverse entries are not acceptable in view of the aforesaid decisions of the Supreme Court. 13. Applying the principle laid down by the Supreme Court in the aforesaid decisions, we do not think that the Tribunal has rendered a decision seeking interference by this Court. The Tribunal after considering the guidelines issued by the Department and the Circular / Office Memorandum, in the light of the decisions of the Supreme Court has come to a right conclusion and this Court does not find any illegality or infirmity in the said decision, which is, accordingly, confirmed. In the result, the writ petitions fail and the same are dismissed. No costs.