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Himachal Pradesh High Court · body

2012 DIGILAW 998 (HP)

Anjori Kapoor v. State of H. P.

2012-12-18

DEV DARSHAN SUD

body2012
JUDGMENT Dev Darshan Sud, J. This petition was originally instituted in the erstwhile, H.P. Administrative Tribunal and assigned OA No. 1642 of 2007. The petitioner pleads that she joined the respondent-H.P. Housing and Urban Development Authority, (‘HIMUDA’ for short) on 18th October, 1996 against the post of Assistant Engineer after having been duly selected by Himachal Pradesh Public Service Commission. According to her, she has been performing duties sincerely but she has been ignored for promotion to the post of Executive Engineer. Her grievance is that in the seniority list of Assistant Engineers (Civil), she was at serial No.11 and respondent No.3-Surinder Kumar at serial No.12. The next post to which both of them were eligible for consideration and appointment is that of Executive Engineer. This is a selection post selection being on the basis of merit-cum-seniority. Respondent No.3 was appointed as Executive Engineer on 16th June, 2007 vide Annexure:A2 which according to the petitioner is illegal and against law. 2. The grievance of the petitioner is that the Annual Confidential Report (ACR for short) from 1.4.2004 to 31.3.2005, (Annexure:A4), 1.4.2005 to 30.9.2005 (AnnexureA5) and 1.9.2005 to 31.3.2006 (Annexure:A6) have been down graded. This was for the reason that she was assessed as ‘Very Good’ by the Reporting Officer and the Reviewing Authority had fully agreed with this assessment but the second respondent down graded this report to ‘Good’. The A.C.R for the period from 1.4.2005 to 30.9.2005 has been down graded from ‘Excellent’ to ‘Very good’. The petitioner case is that the A.C.R. for the period of 1.9.2005 to 31.3.2006, respondent No.3 was assessed as ‘Very good’ by the Reporting Authority as also by the Reviewing Authority but he was upgraded from ‘Very good’ to ‘Outstanding’ (Annexure:A6) and this has caused the difference in the consideration/selection to the next higher post. When the Departmental Promotion Committee (DPC) met, it has not assessed the records on taking an objective view but have recommended the promotion (Annexure:A2) in a mechanical manner. The petitioner obtained copies of Annexure:A2 to Annexue:A7 under the R.T.I. and the note to the agenda and was surprised to learn about the down grading. When the Departmental Promotion Committee (DPC) met, it has not assessed the records on taking an objective view but have recommended the promotion (Annexure:A2) in a mechanical manner. The petitioner obtained copies of Annexure:A2 to Annexue:A7 under the R.T.I. and the note to the agenda and was surprised to learn about the down grading. Annexure:A7 records that the post of Executive Engineer (Civil) is a ‘Selection Post’ as provided in the Recruitment and Promotion Rules and according to the principle applicable for promotion, the Officers assessed ‘Very Good’ will supersede ‘Good’ only when the difference of length of service in the feeder grade between the two officers is not more than two years. 3. Prayer has been made that the A.C.Rs of the petitioner Annexure:A3, Annexure:A4 and Annexurre:A5 be rectified by grading as ‘Very Good’ and ‘Excellent’ which was first grading given by the Reporting Officer and that of the respondent-Surinder Kumar (Annexure:A6) be down graded from ‘Outstanding’ to ‘Very Good’. As a consequence, the order of promotion (Annexure:A2) be quashed and set aside. 4. The second respondent has filed reply denying the claim of the petitioner. The third respondent has supported the order of promotion submitting that the petitioner, replying respondent and one Sh. N.K. Negi were considered by the Departmental Promotion Committee and as such she has been ignored and was not considered for promotion. It is submitted that it is the final grading which has to be considered for performance of an employee after taking into consideration the entire work and conduct of an officer and not by the reporting officer. The final assessment was done by the accepting authority i.e. CEO-cum-Secretary of the HIMUDA. The case of the petitioner and respondent No.3 has been assessed by various officers and it is not as if one person was assessing their work and conduct. 5. This is in a nutshell is the case of the parties. The law with respect to the recording of communication of Annual Confidential Reports has been settled by the Supreme Court in Dev Dutt Vs. Union of India, (2008), 8 SCC 725. The Supreme Court considered the entire law in detail and held: 12. It has been held in Maneka Gandhi vs. Union of India & Anr. AIR 1978 SC 597 that arbitrariness violates Article 14 of the Constitution. Union of India, (2008), 8 SCC 725. The Supreme Court considered the entire law in detail and held: 12. It has been held in Maneka Gandhi vs. Union of India & Anr. AIR 1978 SC 597 that arbitrariness violates Article 14 of the Constitution. In our opinion, the non-communication of an entry in the A.C.R. of a public servant is arbitrary because it deprives the concerned employee from making a representation against it and praying for its up-gradation. In our opinion, every entry in the Annual Confidential Report of every employee under the State, whether he is in civil, judicial, police or other service (except the military) must be communicated to him, so as to enable him to make a representation against it, because non-communication deprives the employee of the opportunity of making a representation against it which may affect his chances of being promoted (or get some other benefits). Moreover, the object of writing the confidential report and making entries in them is to give an opportunity to a public servant to improve his performance, vide State of U.P. vs. Yamuna Shankar Misra 1997 (4) SCC. Hence such non-communication is, in our opinion, arbitrary and hence violative of Article 14 of the Constitution. 13. 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 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. 14. 14. In most services there is a gradation of entries, which is usually as follows: (i) Outstanding (ii) Very Good (iii) Good (iv) Average (v) Fair (vi) Poor A person getting any of the entries at items (ii) to (vi) should be communicated the entry so that he has an opportunity of making a representation praying for its up-gradation, and such a representation must be decided fairly and within a reasonable period by the concerned authority. 15. If we hold that only `poor' entry is to be communicated, the consequences may be that persons getting `fair', `average', `good' or `very good' entries will not be able to represent for its up-gradation, and this may subsequently adversely affect their chances of promotion (or get some other benefit). 16. In our opinion if the Office Memorandum dated 10/11.09.1987, is interpreted to mean that only adverse entries (i.e. `poor' entry) need to be communicated and not `fair', 'average' or 'good' entries, it would become arbitrary (and hence illegal) since it may adversely affect the incumbent's chances of promotion, or get some other benefit. For example, if the bench mark is that an incumbent must have `very good' entries in the last five years, then if he has `very good' (or even `outstanding') entries for four years, a `good' entry for only one year may yet make him ineligible for promotion. This `good' entry may be due to the personal pique of his superior, or because the superior asked him to do something wrong which the incumbent refused, or because the incumbent refused to do sycophancy of his superior, or because of caste or communal prejudice, or for some other extraneous consideration. 17. In our opinion, every entry in the A.C.R. of a public servant must be communicated to him within a reasonable period, whether it is a poor, fair, average, good or very good entry. This is because non-communication of such an entry may adversely affect the employee in two ways : (1) Had the entry been communicated to him he would know about the assessment of his work and conduct by his superiors, which would enable him to improve his work in future (2) He would have an opportunity of making a representation against the entry if he feels it is unjustified, and pray for its up-gradation. Hence non-communication of an entry is arbitrary, and it has been held by the Constitution Bench decision of this Court in Maneka Gandhi vs. Union of India (supra) that arbitrariness violates Article 14 of the Constitution. 18. Thus it is not only when there is a bench mark but in all cases that an entry (whether it is poor, fair, average, good or very good) must be communicated to a public servant, otherwise there is violation of the principle of fairness, which is the soul of natural justice. Even an outstanding entry should be communicated since that would boost the morale of the employee and make him work harder. 19. Learned counsel for the respondent has relied on the decision of this Court in U. P. Jal Nigam vs. Prabhat Chandra Jain AIR 1996 SC 1661 . We have perused the said decision, which is cryptic and does not go into details. Moreover it has not noticed the Constitution Bench decision of this Court in Maneka Gandhi vs. Union of India (supra) which has held that all State action must be non-arbitrary, otherwise Article 14 of the Constitution will be violated. In our opinion the decision in U.P. Jal Nigam (supra) cannot be said to have laid down any legal principle that entries need not be communicated. As observed in Bharat Petroleum Corporation Ltd. vs. N.R. Vairamani AIR 2004 SC 4778 (vide para 9): "9.Observations of Courts are neither to be read as Euclid's Theorems nor as provisions of the statute, and that too, taken out of their context". 20. In U.P. Jal Nigam's case (supra) there is only a stray observation "if the graded entry is of going a step down, like falling from 'very good' to 'good' that may not ordinarily be an adverse entry since both are a positive grading". There is no discussion about the question whether such 'good' grading can also have serious adverse consequences as it may virtually eliminate the chances of promotion of the incumbent if there is a benchmark requiring 'very good' entry. And even when there is no benchmark, such downgrading can have serious adverse effect on an incumbent's chances of promotion where comparative merit of several candidates is considered. 21. Learned counsel for the respondent also relied upon the decision of this Court in Union of India & Anr. vs. S. K. Goel & Ors. And even when there is no benchmark, such downgrading can have serious adverse effect on an incumbent's chances of promotion where comparative merit of several candidates is considered. 21. Learned counsel for the respondent also relied upon the decision of this Court in Union of India & Anr. vs. S. K. Goel & Ors. AIR 2007 SC 1199 and on the strength of the same submitted that only an adverse entry need be communicated to the incumbent. The aforesaid decision is a 2-Judge Bench decision and hence cannot prevail over the 7-Judge Constitution Bench decision of this Court in Maneka Gandhi vs. Union of India (supra) in which it has been held that arbitrariness violates Article 14 of the Constitution. Since the aforesaid decision in Union of India vs. S.K. Goel (supra) has not considered the aforesaid Constitution Bench decision in Maneka Gandhi's case (supra), it cannot be said to have laid down the correct law. Moreover, this decision also cannot be treated as a Euclid's formula since there is no detailed discussion in it about the adverse consequences of non-communication of the entry, and the consequential denial of making a representation against it. 22. It may be mentioned that communication of entries and giving opportunity to represent against them is particularly important on higher posts which are in a pyramidical structure where often the principle of elimination is followed in selection for promotion, and even a single entry can destroy the career of an officer which has otherwise been outstanding throughout. This often results 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. 23. In the present case, the action of the respondents in not communicating the 'good' entry for the year 1993-94 to the appellant is in our opinion arbitrary and violative of natural justice, because in substance the `good' entry operates as an adverse entry (for the reason given above). 24. What is natural justice? The rules of natural justice are not codified nor are they unvarying in all situations, rather they are flexible. They may, however, be summarized in one word : fairness. In other words, what they require is fairness by the authority concerned. Of course, what is fair would depend on the situation and the context. 25. 24. What is natural justice? The rules of natural justice are not codified nor are they unvarying in all situations, rather they are flexible. They may, however, be summarized in one word : fairness. In other words, what they require is fairness by the authority concerned. Of course, what is fair would depend on the situation and the context. 25. Lord Esher M.R. in Voinet vs. Barrett (1885) 55 L.J. QB 39, 39 observed: "Natural justice is the natural sense of what is right and wrong." 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. 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. 27. A large number of decisions of this Court have discussed the principles of natural justice and it is not necessary for us to go into all of them here. However, we may consider a few. 28. Thus, in A. K. Kraipak & Ors. vs. Union of India & Ors. AIR 1970 SC 150 , a Constitution Bench of this Court held : "20…The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules, namely (1) no one shall be a judge in his own cause (Nemo debet csse judex propria causa), and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice". (emphasis supplied). The aforesaid decision was followed by this Court in K. I. Shephard & Ors. vs. Union of India & Ors. AIR 1988 SC 686 (vide paras 12-15). But in the course of years many more subsidiary rules came to be added to the rules of natural justice". (emphasis supplied). The aforesaid decision was followed by this Court in K. I. Shephard & Ors. vs. Union of India & Ors. AIR 1988 SC 686 (vide paras 12-15). It was held in this decision that even administrative acts have to be in accordance with natural justice if they have civil consequences. It was also held that natural justice has various facets and acting fairly is one of them. 29. In Kumaon Mandal Vikas Nigam Ltd. vs. Girja Shankar Pant AIR 2001 SC 24 , this Court held (vide para 2): “2……….The doctrine (natural justice) is now termed as a synonym of fairness in the concept of justice and stands as the most accepted methodology of a governmental action". (emphasis supplied) In the same decision it was also held following the decision of Tucker, LJ in Russell vs. Duke of Norfolk (1949) 1 All ER 109: "The requirement of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the tribunal is acting, the subject- matter that is being dealt with, and so forth". 30. In Union of India etc. vs. Tulsiram Patel etc. AIR 1985 SC 1416 (vide para 97) a Constitution Bench of this Court referred to with approval the following observations of Ormond, L.J. in Norwest Holst Ltd. vs. Secretary of State for Trade (1978) 1, Ch. 201 : "The House of Lords and this court have repeatedly emphasized that the ordinary principles of natural justice must be kept flexible and must be adapted to the circumstances prevailing in any particular case". (emphasis supplied) 31. Thus, it is well settled that the rules of natural justice are flexible. The question to be asked in every case to determine whether the rules of natural justice have been violated is : have the authorities acted fairly?” 32. In Swadesh Cotton Mills etc. vs. Union of India etc., AIR 1981 SC 818 , this Court following the decision in Mohinder Singh Gill & Anr. vs. The Chief Election Commissioner & Ors., AIR 1978 SC 851 held that the soul of the rule (natural justice) is fair play in action. 33. In Swadesh Cotton Mills etc. vs. Union of India etc., AIR 1981 SC 818 , this Court following the decision in Mohinder Singh Gill & Anr. vs. The Chief Election Commissioner & Ors., AIR 1978 SC 851 held that the soul of the rule (natural justice) is fair play in action. 33. In our opinion, fair play required that the respondent should have communicated the 'good' entry of 1993-94 to the appellant so that he could have an opportunity of making a representation praying for upgrading the same so that he could be eligible for promotion. Non-communication of the said entry, in our opinion, was hence unfair on the part of the respondent and hence violative of natural justice. 34. Originally there were said to be only two principles of natural justice : (1) the rule against bias and (2) the right to be heard (audi alteram partem). However, subsequently, as noted in A.K. Kraipak's case (supra) and K.L. Shephard's case (supra), some more rules came to be added to the rules of 18 natural justice, e.g. the requirement to give reasons vide S.N. Mukherji vs. Union of India AIR 1990 SC 1984 . In Maneka Gandhi vs. Union of India (supra) (vide paragraphs 56 to 61) it was held that natural justice is part of Article 14 of the Constitution. 35. Thus natural justice has an expanding content and is not stagnant. It is therefore open to the Court to develop new principles of natural justice in appropriate cases. 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. 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 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. 38. We, however, make it clear that the above directions will not apply to military officers because the position for them is different as clarified by this Court in Union of India vs. Major Bahadur Singh 2006 (1) SCC 368 . But they will apply to employees of statutory authorities, public sector 20 corporations and other instrumentalities of the State (in addition to Government servants). 39. In Canara Bank vs. V. K. Awasthy 2005 (6) SCC 321 , this Court held that the concept of natural justice has undergone a great deal of change in recent years. As observed in para 8 of the said judgment: "8.Natural justice is another name for commonsense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a common-sense liberal way. Justice is based substantially on natural ideals and human values". In para 12 of the said judgment it was observed: “12. What is meant by the term "principles of natural justice" is not easy to determine. Lord Summer (then Hamilton, L.J.) in R. v. Local Govt. Board (1914) 1 KB 160:83 LJKB 86 described the phrase as sadly lacking in precision. In General Council of Medical Education & Registration of U.K. v. Spackman (1943) AC 627 : (1943) 2 All ER 337, Lord Wright observed that it was not desirable to attempt "to force it into any Procrustean bed". 40. In State of Maharashtra vs. Public Concern for Governance Trust & Ors. In General Council of Medical Education & Registration of U.K. v. Spackman (1943) AC 627 : (1943) 2 All ER 337, Lord Wright observed that it was not desirable to attempt "to force it into any Procrustean bed". 40. In State of Maharashtra vs. Public Concern for Governance Trust & Ors. 2007 (3) SCC 587 , it was observed (vide para 39): "In our opinion, when an authority takes a decision which may have civil consequences and affects the rights 21of a person, the principles of natural justice would at once come into play". 41. In our opinion, non-communication of entries in the Annual Confidential Report of a public servant, whether he is in civil, judicial, police or any other service (other than the military), certainly has civil consequences because it may affect his chances for promotion or get other benefits (as already discussed above). Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution. 42. In view of the above, we are of the opinion that both the learned Single Judge as well as the learned Division Bench erred in law. Hence, we set aside the judgment of the Learned Single Judge as well as the impugned judgment of the learned Division Bench. (Pp.732-738) 6. It is in the light of the settled principles that the entire case of the parties is to be considered. It is urged before me that the principles settled in Dev Dutt’s case supra are not attracted to the facts of the case because after initial assessment, it has to be reviewed. It is not the assessment of only one officer but confirmation by the Reviewing Authority also and it is that assessment which would be relevant. 7. The judgment in Dev Dutt’s case is exhaustive and takes within its ambit/ sweep the entire law with respect to recording of A.C.Rs and its communication to the concerned officer. Their Lordships of the Supreme Court are unanimous when they hold that new Principles of Natural Justice has been developed by holding that fairness and transparency in public administration require that all entries in the A.C.Rs of a public servant, must be communicated. Their Lordships of the Supreme Court are unanimous when they hold that new Principles of Natural Justice has been developed by holding that fairness and transparency in public administration require that all entries in the A.C.Rs of a public servant, must be communicated. The judgment concludes by saying that these directions do not apply to military officers because their position which is different but that they apply to all statutory authorities, public sector Corporations and other instrumentalities of the State (in addition to Government servants). I need not reiterate that the Court affirms that non-communication of entries in the A.C.R. is arbitrary and violative of Article 14 of the Constitution of India. 8. Adverting to the facts of the present case, I hold that the petitioner was not communicated the remarks as recorded in the Annual Confidential Report i.e. down grading from ‘Very Good’ to ‘Good’ which is violative of Article 14 of the Constitution of India. On the second relief claimed, I cannot persuade myself to hold that the assessment of the third respondent needs down gradation. This is not the right of the petitioner. The promotion of the third respondent is not disturbed for the present but after compliance with the directions in Dev Dutt’s case supra, if there be any change, the selection process vide which the third respondent was promoted to the post of Executive Engineer shall be held afresh. Petition is disposed of. No order as to costs. 9. Respondents No. 1 and 2 shall ensure prompt compliance to the directions in Dev Dutt’s case supra in any event not later than three months from today. Need less to say that in case the third respondent is aggrieved about the down gradation of his report, he should also be conveyed the entries etc for appropriate remedial action.