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2016 DIGILAW 1250 (RAJ)

Union of India v. Neelima Jauhari

2016-08-30

DINESH CHANDRA SOMANI, MOHAMMAD RAFIQ

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JUDGMENT : Mr. Mohammad Rafiq, J. 1. This writ petition has been filed by Union of India through its Secretary, Department of Personnel and Training, questioning the legality of the judgment passed by Central Administrative Tribunal dated 30.10.2015, with the prayer that the same be set aside. The Tribunal by the aforesaid judgment allowed the Original Application (for short-’OA’) filed by respondent-Ms. Neelima Jauhari, who therein challenged the order dated 19.03.2012 passed by the Deputy Secretary, Department of Personnel (A-1), rejecting the representation against the downgrading of remarks in her ACR of the year 1999-2000, 2000-01, 2001-02 and 2002-03. Further prayer made in the OA before the Tribunal was that benchmarks awarded to the applicant (respondent wherein) may be upgraded to 8 or 9 in the category of ‘outstanding’ as per complete record of particular year so as to match with her previous and subsequent APARs and direction be issued for her empanelment for appointment on deputation as Additional Secretary in the Central Government on the basis of overall service record, ignoring the downgraded remarks. The Tribunal while disposing of the OA passed the following directions in para 10 and 11 of the order impugned : “10. In view of above position, we are of the view that for the purpose of consideration of the applicant, who is now working as Chairman, Board of Revenue, Rajasthan, if otherwise eligible, for empanelment/selection as Secretary to the Government of India in the Central Government under the Central Staffing Scheme, the gradings in the following ACRs are required to be treated as under – 1999-2000 After expunction of adverse remarks, the grading of ‘Average’ has no basis and therefore, needs to be ignored. 2000-2001 (01.04.2000 18.10.2000) It shall be rated as ‘very good’ in view of the to assessment made by the Accepting Authority. 2000-2001 (19.10.2000 31.03.2001), The entries ‘good’ since not communicated and to representation not considered later as per Ann.A/1 shall be ignored or not treated below the benchmark, if any. We are placing reliance on the judgment of the Hon’ble Apex Court in Dev Dutt v. UOI and Abijt Ghosh v. UOI (supra) 2001-2002, 2002-2003 (01.04.2002 to 15.12.2002) 11. 2000-2001 (19.10.2000 31.03.2001), The entries ‘good’ since not communicated and to representation not considered later as per Ann.A/1 shall be ignored or not treated below the benchmark, if any. We are placing reliance on the judgment of the Hon’ble Apex Court in Dev Dutt v. UOI and Abijt Ghosh v. UOI (supra) 2001-2002, 2002-2003 (01.04.2002 to 15.12.2002) 11. The OA is, thus, disposed for with directions to respondent No.1 i.e. Union of India through the Secretary, Department of Personnel and Training, Government of India to consider the applicant, if otherwise eligible, for empanelment/selection as Secretary in the Central Government under the Central Staffing Scheme with the Gradings of ACRs as stated in the proceeding paragraph. Further, the applicant’s case shall be considered in the next meeting of the Special Committee of Secretaries (SCoS). The respondent No. 2 the State of Rajasthan through Principal Secretary, Department of Personnel, Government of Rajasthan, Jaipur shall also carry out any required formalities without delay for consideration of the case of applicant by respondent No.1 as direct above. No order as to costs.” 2. Shri Anand Sharma, learned counsel appearing for the petitioner-Union of India has submitted that prior to filing of the above referred to O.A., the respondent had filed O.A. No. 479/2011 seeking up gradation of the benchmarks in respect of APAR of the year 1999-2000. The Tribunal by order dated 31.10.2011 held that O.A. to be premature and required to respondent to first prefer a representation before the competent authority. This representation was rejected by the State Government vide order dated 19.03.2012, which was impugned before the Tribunal in the O.A. 3. Learned counsel for the petitioner has argued that the learned Tribunal has erred in law is not appreciating that scope of the subsequent application could not have been expanded to also question the downgrading and seek up gradation in the APARs of the subsequent years. Empanelment the officers of posting as Joint Secretaries, Additional Secretaries and Secretaries in the Government of India is made on deputation and is regulated by the provisions of the Central Staffing Scheme (CSS). Such deputation by way of selection to the aforesaid positions is preceded by empanelment of the eligible candidates at respective levels in the Central Government in accordance with the guidelines for empanelment. Such deputation by way of selection to the aforesaid positions is preceded by empanelment of the eligible candidates at respective levels in the Central Government in accordance with the guidelines for empanelment. It was made clear in reply to the OA that such empanelment and deputation in the Central Government are not avenues of promotion or of career progression for the officers belonging to IAS or other services and that empanelment is not considered as reflection of intrinsic merit or otherwise of an officer. Learned counsel for the petitioner has referred to para 3, 5 and 14 of Central Staffing Scheme in support of his arguments. It is submitted that suitability of an officer to occupy senior level posts in the Central Government is relevant factor. Further, empanelment of the officers to these posts is thorough the process of strict selects and needs of the Central Government, which are of paramount importance. It is submitted that exercise of empanelment initially was carried out by a Special Committee of Secretaries (SCoS), which while recommending names of the officers to be included in the panel, has taken into account the experience profile of the officers concerned, scrutinizes their records and evaluated qualities such as general reputation, merit, competence, leadership, flair for participation in policy making and in their implementation. The Special Committee of Secretaries in its meetings convened on 28.04.2009, 1.05.2009 and 13.05.2009 considered the reports submitted by the Expert Panel regarding 1979 batch of IAS officers in connection with their empanelment at the Secretary/Additional Secretary level. The Committee after evaluation of such qualities and also taking note of their vigilance status did not recommend empanelment of the respondent for appointment to the post of Additional Secretary/equivalent posts in the Central Government. At no point of time, she has questioned her non-suitability before any forum of law. 4. Shri Anand Sharma, learned counsel for the petitioner has argued that the Tribunal has committed serious error of law in giving direction for consideration of the respondent for empanelment aforesaid under CSS, whereas no such prayer was made in the OA. The Tribunal while passing the impugned order has traveled outside its jurisdiction under bona fide wrong assumptions as if ACRs/APARs are the sole criteria for empanelment under Central Staffing Scheme. The Tribunal while passing the impugned order has traveled outside its jurisdiction under bona fide wrong assumptions as if ACRs/APARs are the sole criteria for empanelment under Central Staffing Scheme. Even if it is assumed that the State Government committed certain procedural irregularities in awarding grades in ACR/APARs of the respondent, then also while giving direction to improve such grades, the Tribunal ought not to have directed Government of India to consider the respondent for empanelment/selection/appointment as Secretary in Central Government. The Tribunal has in doing so, adhered to the provisions of Central Staffing Scheme, more particularly when provisions and guidelines of such scheme were not under challenge before it. No pleading was made in the OA for non-selection of the respondent as to how the consideration earlier made by SCoS in its meeting convened on 28.04.2009, 01.05.2009 and 13.05.2009, bad in law. In absence thereof, reconsideration of the respondent could not have been directed. 5. Shri Anand Sharma, learned counsel argued that the law prevalent at the relevant time would be applicable and new amendment can be applied only prospectively. The Tribunal therefore committed serious error in applying the AIS (PAR) Rules, 2007 for examining the ACR of the respondent for the period 1999-2000, 2000-01, 2001-02 and 2002-03. It is argued that judgment of the Supreme Court in Dev Dutt v. UOI- 2008 (8) SCC 725 and Abhijit Ghosh v. UOI - 2009 (16) SCC 146 would have no bearing over the criteria for emplanelment in Central Government, which is only a deputation and is obviously not a matter of right Learned counsel relying on judgment of the Supreme Court in Dalpat Abasaheb Solunke & Ors. v. Dr. B.S. Mahajan and Ors.- 1990 (1) SCC 305 argued that Tribunal could not interfere with the decision of Selection Committee as it does not act as a Court of appeal against such decision. The decision of such Committee is open to challenge on limited grounds, such as illegality or patent material irregularity in the constitution of the Committee or its procedure vitiating the selection, or proven mala fides affecting fairness of selection. The decision of such Committee is open to challenge on limited grounds, such as illegality or patent material irregularity in the constitution of the Committee or its procedure vitiating the selection, or proven mala fides affecting fairness of selection. Learned counsel heavily relied on the judgment of Supreme Court in Union of India v. Samar Singh- (1996) 10 SCC 555 and argued that Supreme Court therein held that the empanelment for the post of Additional Secretary/Secretary to the Government of India, is not a promotion for an IAS officer Reliance is also placed on judgment of the Supreme Court In Satya Narain Shukla v. UOI and Ors.- 2006 (9) SCC 69 wherein challenge was posed to Central Staffing Scheme, especially para 14 thereof. The Supreme Court held the said Scheme to be intra vires of Article 309 and 312 of the Constitution of India and again reiterated the law laid down in Samar Singh, supra. It held that appointment of State cadre IAS for the post of Additional Secretary/Secretary to the Government of India does not amount to promotion and the non-empanelment of the appellant for the post of Addition Secretary/Secretary to the Government of India was neither arbitrary, nor unreasonable nor suffers from by mala fides. It is argued that reliance placed on behalf of the respondent on judgment of the Supreme Court in Sukhdev Singh v. UOI- 2013 (9) SCC 566 to argue that Satya Narain Shukla has been in that case declared as not a good law, is wholly misplaced because Satya Narain Shukla has not lost precedential value. Careful reading of para 9 of judgment in Sukhdev Singh, supra would reveal that the judgment of Satya Narain Shukla, supra has been declared not laying down good law only to the extent it is contrary to what has been observed in para 8 of the former. In other words, the ratio of judgment of Supreme Court in Satya Narain Shukla to the extent it is not contrary to what is observed in para 8 of Dev Dutt, supra would still hold field. In other words, the ratio of judgment of Supreme Court in Satya Narain Shukla to the extent it is not contrary to what is observed in para 8 of Dev Dutt, supra would still hold field. Shri Anand Sharma, learned counsel for the petitioner has argued that the objection raised by the respondent with regard to locus, standi of the Union of India to question the correctness of the judgment of Tribunal by relying on judgment of the Supreme Court in Jasbhai Motibhai Desai v. Roshan Kumar- 1976 (1) SCC 671 is wholly misconceived. What the Supreme Court decided in that case was the question of locus standi in reference to the point as to whether a business rival can challenge No-objection Certificate granted by the District Magistrate in favour of another person to run same business or not. It is therefore prayed that the impugned judgment be set aside and the OA filed by the respondent before the Tribunal be dismissed. 6. Per contra, Shri Virendra Lodha, learned Senior Advocate for the respondent has argued that the gradings in the APARs plays a vital role in evaluation of the suitability of a State Cadre IAS Officer for the purpose of empanelment as Additional Secretary for posting on deputation with the Central Government. This would be evident from the guidelines/provisions contained in Central Staffing Scheme itself, especially para 14 thereof, which inter alia provides that selection for inclusion on the panel of officers adjudged suitable for appointment would be governed by ACC on the basis of proposals submitted by the Cabinet Secretary, who may be assisted by a Special Committee of Secretaries for drawing up proposals for the consideration of ACC. As far as possible, panels of suitable officers would be drawn up on an annual basis considering all officers of a particular year of allotment from one service together as a group. Clause-14 further provides that inclusion in such panels will be through the process of strict selection and evaluation of such qualities as merit, competence, leadership and a flair for participating in the policy-making process. Clause-14 further provides that inclusion in such panels will be through the process of strict selection and evaluation of such qualities as merit, competence, leadership and a flair for participating in the policy-making process. Although this clause provides that posts at these levels at the Centre filled according to this Scheme are not to be considered as posts for the betterment of promotion prospects of any service, but the APAR gradings of a State Cadre IAS Officer would certainly have a bearing for evaluation of his/her qualities of merit, competence and leadership and a flair of participating in the policy making process itself. The respondent is presently working on the post of Chairman, Board of Revenue of the State. Since she had poor grading in her APARs of the relevant year, it was bound to reflect on evaluation of her merit made by SCoS. Once they are upgraded with better grading being awarded to the respondent, again it is bound to reflect upon evaluation by SCoS. The Tribunal by the impugned judgment issued certain directions to the State Government regarding the APARs, which is State’s subject and not she Union subject. Therefore, the Central Government can have no grievance thereabout. The State Government has to now carry out the exercise for the purpose of upgrading APARs of respondent. It is only thereafter that the Union of India has to consider the case of the respondent, if otherwise eligible for the purpose of empanelment or selection as Secretary in the Central Government. 7. The Tribunal on the basis of ratio of judgment of Supreme Court in Dev Dutt, supra and Abhijit Ghosh, supra has rightly allowed the OA. In doing so, the Tribunal has also relied on the judgment of Supreme Court in Sukhdev Singh, supra, Prabhu Dayal Khandelwal v. Chairman, UPSC & Ors., Civil Appeal Nos. 8006-8007 of 2003 decided on 23.07.2015 and Daljit Singh Grewal v. State of Punjab & Ors. (2015) 9 SCC 680 . The impugned judgment merely gives innocuous directions to the Union of India that if eventual up gradation in the APARs of the respondent takes place, they would consider afresh his case for empanelment for the post of Secretary/Additional Secretary. The Union of India, therefore, cannot be said to be an aggrieved party so as to question the correctness of the judgment. The Union of India, therefore, cannot be said to be an aggrieved party so as to question the correctness of the judgment. The writ petition filed by the Union of India is, therefore, liable to be dismissed. 8. We have given our thoughtful consideration to rival submissions and perused the material on record. 9. Facts as appearing from the record and averred in para 4(iii) of the Original Application indicate that the respondent belongs to 1997 batch of Indian Administrative Service (IAS) of Rajasthan Cadre. She had “very good” and “outstanding” gradation in 1997-98 and 1998-99. The points based on the gradation that were awarded to the applicant were 8 to 10 in respect of “outstanding” and 7 to 8 in respect of “good”. In the year 1997-98, the points awarded were 8 to 10, 7 to 8 and 8 to 10 respectively for different spells and for 1998-99, 8 to 10, 7 to 8 and 7 to 8 respectively for different spells. In the year 1999-2000, an adverse remark was entered in the APAR of the respondent, which was later expunged, but grading that was given to her was still “average”. As far as year 2000-01 is concerned though the Reporting Officer rated her “average”, for the period from 1.4.2000 to 18.10.2000, but this was upgraded by the Accepting Officer to “very good”. However, for the subsequent period 18.10.2000 to 31.3.2000, it was only “good”. The points based on gradation for the year 2000-01 were 3 to 4. Thereafter, for the period 16.12.2002 to 31.3.2002 in the year 2002-03, her APAR were not initiated, but the Tribunal at page 11 of the judgment observed that the APAR for the remaining part of year 2000-01 (19.10.2000 to 31.03.2001), 2001-02 and 2002-03 has been assessed as “good”. It is then averred in the Original Application by the applicant that her performance in the APAR of the year 2003-04 was rated “very good” and for the part of year 2004-05 (1.4.2004 to 2.9.2004), it was rated “very good”, but for the remaining part; viz-21.9.2004 to 31.3.2005, the APAP was not initiated. Based on her gradation for the years 2003-04 and 2004-05 she was awarded 7-8 points. Then for the year 2005-06 and 2006-07, she was rated “very good” with 7 to 8 points. For part of the year 2007-08 (30.6.2007 to 31.3.2008), she was rated “outstanding” with 8 to 10 points. Based on her gradation for the years 2003-04 and 2004-05 she was awarded 7-8 points. Then for the year 2005-06 and 2006-07, she was rated “very good” with 7 to 8 points. For part of the year 2007-08 (30.6.2007 to 31.3.2008), she was rated “outstanding” with 8 to 10 points. For the year 2008-09, the APAR of the applicant was not initiated. Thereafter for the part of the year 2009-10 (1.4.2009 to 31.10.2009), she was rated “outstanding”, having 8 to 10 points. For the year 2010-2011 (November, 2010 to March, 2011), she was rated “very good “, but the benchmark allotted to her was reduced from 9 to 8. From April, 2011 to August, 2011, the grading awarded to the applicant was “very good” with benchmarks being reduced to 7. 10. The Tribunal has relied on judgment of the Supreme Court in Dev Dutt v. UOI & Ors. (2008) 8 SCC 725 , in which it was observed that the grant of a ‘good’ entry is of no satisfaction to the incumbent if it, in fact, makes him ineligible for promotion or has an adverse effect on his chances of promotion. Even if there is no bench mark, non-communication of an entry, may adversely affect the employee’s chances of promotion because when comparative merit is being considered for promotion, 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. The communication of entries and giving opportunity to represent against them is particularly important on higher posts which are an 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. The learned Tribunal has also relied on the judgment of Supreme Court in Abhijit Ghosh v. UOI & Ors.- (2009) 16 SCC 146 wherein it was held that the entries “good” if at all granted to the appellant, the same should not have been taken into account 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. 11. The respondent has no case that the appellant had ever been informed of the nature of the grading given to him. 11. Indisputably, prior to 1999-2000 and subsequent to the year 2002-03, the respondent was having either “very good” or “outstanding” grading though in between for the part of the period, her APARs were not initiated, nevertheless the fact remains that the Special Committee of Secretaries (SCoS) considered the report submitted by the expert panel regarding officers of 1997 batch of IAS officer for their empanelment for posting on deputation as Secretary/Additional Secretary with the Central Government respectively on 28.04.2009, 01.05.2009 and 13.05.2009, on the basis of all such gradations and did not recommend empanelment of the respondent. The applicant in para-1 of the original application has stated that she acquired the knowledge under Right to Information Act about downgrading of remarks in her APARs of different years when finally on 30.9.2011 she was permitted by the State Government to see remarks entered in her APARs. In fact, the respondent earlier also filed an Original Application No. 479/2011 on 11.10.2011 wherein she questioned the correctness of grading in the APAR of the year 1999-2000 only and the Tribunal by order dated 31.10.2011 dismissed that O.A. as premature because the same was filed without making any representation to the respondent therein. The Tribunal, therefore, required the respondent to first file a representation before the State Government with direction to the State Government to decide the same by speaking order within three months. The respondent submitted representation to the Chief Secretary, Government of Rajasthan on 22.11.2011. The Government by order dated 19.03.2012 dismissed the said representation conveying that the competent authority had decided to keep the grading of aforesaid APAR unchanged because Reporting, Accepting and Reviewing Officer of that time have retired. But while challenging this order in a fresh O.A. No. 291/00207/2012, the respondent this time prayed for not only quashment of the order dated 19.03.2012, but also seeking direction for up gradation of the APAR of the year 1999-2000, 2000-01, 2001-02 and 2002-03 and that the respondents may be directed to ignore the downgrading remarks of APAR year 1999-2000 or in alternate, the same may be upgraded to the gradation of previous year and also seeking direction to Union of India to consider the respondent for empanelment as Additional Secretary in the Central Government. 12. 12. As per clause 14 of the Central Staffing Scheme, an Expert Panel initially examines the ACRs of the officers in detail for each batch and gives its own assessment of the gradings of the officer, that are taken into account by the Special Committee of Secretaries, which after considering the record of the Officers makes its recommendation while recommending the names of the officers, to be included in the panel takes into account the qualities such as merit, competence, leadership and a flair for participating in the policy making process. This exercise is undertaken on annual basis considering all officers of a particular year of allotment from one service together as a group. Inclusion in such panels is through the process of strict selection and evaluation of the aforesaid qualities. The Empanelment guidelines provide for assessing officers on a scale of 10 on the basis of their grades in their ACRs. While drawing the panel, SCoS goes in descending order of numerical scores of the officers, except for relaxation for equity purpose. The Officers so empanelled are taken on deputation to serve as Additional Secretary/Secretary. The Officers who are so borrowed serve the Government of India for stipulated tenure on deputation and, thereafter, return to their parent cadre. Their growth, development and career prospects will be mainly in their own service. No individual member of an all-India Service can claim any right to a post or appointment under the Government of India on this ground. 13. The objection of the respondent as to the locus standi of the Union of India to challenge the judgment of the Tribunal is noted to be rejected for the simple reason that what, in effect, the respondent prayed for and was granted by the Tribunal was the relief to re-consider his case for empanelment for the purpose of her posting on deputation as Additional Secretary/Secretary with Union of India, though it is consequential to the first direction of the Tribunal to ignore her downgrading in the ACRs of the year 1999-2000 and 2001 to 2003 and in between treat the grading of the year 2000-01 as ‘very good’ in view of the assessment made by the accepting authority. But at the same time, we are also not persuaded to uphold the argument of the petitioner-Union of India either that the original application should have been dismissed as time barred, because in the earlier OA, the representation allowed to be made by the respondent to the State Government was confined to the gradings of the APAR of the year 1999-2000 only and that the challenge to the gradings made in the year 2000-01 to 2002-03 is belated. We are not persuaded to uphold the argument that the respondent should have been non-suited for the reason of delay in approaching the Tribunal because the basic premise on which the Tribunal has allowed the OA is non-communication of the downgraded entries to the respondent in respect of any of these years. It could not be shown either before the Tribunal or even before this Court, as a question of fact, whether those downgraded entries were ever conveyed to the respondent. The respondent approached the Tribunal only when she was not empanelled for appointment on deputation with the Central Government as Additional Secretary/Secretary in the panel prepared on the basis of recommendation of SCoS in their proceedings dated 28.04.2009, 01.05.2009 and 13.05.2009. The respondent acquired the information in respect of her APAR gradings through R.T.I. only when she was permitted by the State Government to inspect the APARs on 30.09.2011. It is thereby that she learnt about her downgraded entries in the period intervening 1998-1999 and 2003-04 viz. 1999-2000, 2000-01 2001-02 and 2002-03. 14. The Supreme Court in Prabhu Dayal Khandelwal, supra was dealing with a case where the appellant did not qualify benchmark stipulated in the DoPT guidelines, therefore, he was not fit for promotion. The appellant raised a challenge before the Tribunal on the ground that un-communicated ACRs could not be taken into consideration to defeat his claim for promotion. The Tribunal accepted the prayer made by the appellant while directing the respondents to reconsider the case of the appellant. The High Court however reversed that judgment. The appellant then approached the Supreme Court. In those facts, the Supreme Court while setting aside the judgment of High Court held that the claim of the appellant could not be ignored by taking into consideration, un-communicated Annual Confidential Reports, wherein the appellant was assessed as “good”. The High Court however reversed that judgment. The appellant then approached the Supreme Court. In those facts, the Supreme Court while setting aside the judgment of High Court held that the claim of the appellant could not be ignored by taking into consideration, un-communicated Annual Confidential Reports, wherein the appellant was assessed as “good”. In the absence of the entries, it is apparent that the remaining entries of the appellant being “very good”, he would be entitled to be considered fit for the promotion, on the basis of the then prevailing DoPT guidelines and the remaining valid ACRs, held the Supreme Court. In Daljit Singh Grewal, supra, the Supreme Court following its judgment in Sukhdev Singh, supra held that if the ACR of the officer concerned is to be used for the purpose of denying promotion, then all such ACRs would be required to be communicated to him, to enable him to make a representation against his adverse entries made in his ACRs. 15. The Supreme Court in U.P. Jal Nigam & Ors. v. Prabhat Chandra Jain & Ors. 1996 (2) SCC 363 has observed that “if the graded entry is of going a step down, Ike falling from ‘very good’ to ‘good’ that may not ordinarily be an adverse entry since both are a positive grading. All what is required by the Authority recording confidentials in the situation is to record reasons for such downgrading on the personal file of the officer concerned, and inform him of the change in the form of an advice. If the variation warranted be not permissible, then the very purpose of writing annual confidential reports would be frustrated. Having achieved an optimum level the employee on his part may slacken in his work, relaxing secure by his one time achievement. This would be an undesirable situation. All the same the sting of adverseness must, in all events, be not reflected in such variations, as otherwise they shall be communicated as such. It may be emphasized that even a positive confidential entry in a given case can previously be adverse and to say that an adverse entry should always be qualitatively damaging may not be true.” 16. All the same the sting of adverseness must, in all events, be not reflected in such variations, as otherwise they shall be communicated as such. It may be emphasized that even a positive confidential entry in a given case can previously be adverse and to say that an adverse entry should always be qualitatively damaging may not be true.” 16. The judgment in U.P. Jal Nigam, supra was sought to be distinguished by another two-Judge bench judgment of the Supreme Court in Union of India v. Major Bahadur Singh- (2006) 1 SCC 368 holding that the proposition of law laid down therein has no universal application and was intended to be meant only for employees of U.P. Jal Nigam only. Another two-judge Bench in Sukhdev Singh, supra however disagreeing with that view in major Bahadur Singh observed that “the judgment in U.P. Jal Nigam case cannot be held to be applicable only to its own employees. It has laid down a proposition of law. Its applicability may depend upon the rules entirely in the filed but by it cannot be said that no law has been laid down a proposition of law. Its applicability may depend upon the rules entirely in the field but by it cannot be said that no law has been laid down therein.” The matter was, therefore, ordered to be referred to the Larger Bench for appropriate decision. It was in this background that a three-Judge Bench of Supreme Court in Sukhdev Singh, supra on this aspect has in their authoritative pronouncement reiterated the view expressed in U.P. Jal Nigam, supra and Dev Dutt, supra and Abhijit Ghosh Dastidar, supra and held as under - “8. In our opinion, the view taken in Dev Dutt that every entry in ACR of a public servant must be communicated to him/her within a reasonable period is legally sound and helps in achieving threefold objectives. First, the communication of every entry in the ACR to a public servant helps him/her to work harder and achieve more that helps him in improving his work and give better results. Second and equally important, on being made aware of the entry in the ACR, the public servant may feel dissatisfied with the same. Communication of the entry enables him/her, to make representation for up gradation of the remarks entered in the ACR. Third, communication of every entry in the ACR. Second and equally important, on being made aware of the entry in the ACR, the public servant may feel dissatisfied with the same. Communication of the entry enables him/her, to make representation for up gradation of the remarks entered in the ACR. Third, communication of every entry in the ACR. Third, communication of every entry in the ACR brings transparency in recording the remarks relating to a public servant and the system becomes more conforming to the principles of natural justice. We, accordingly, hold that every entry in ACR - poor, fair, average, good or very good - must be communicated to him/her within a reason 1 period.” 17. No doubt, mere empanelment for posting on deputation as Additional Secretary/Secretary with the Government of India is not a promotion and there can also be no quarrel with the proposition of law laid a down by the Supreme Court in Satya Narain Shukla, supra. But what was laid down in that judgment was based on its own facts. The appellant in that case alleged that his non-empanelment, was result of malafides inasmuch as ACRs were not written fairly and in fact his excellent record had been spoiled by his superior officer on account of mala fides against him. When a query was put to him as to what were the mala fides alleged before the Tribunal and the High Court, he failed to point out whether he alleged any argument of mala fide before the Tribunal or the High Court. He made alternative argument that his ACRs had been left incomplete and his case for empanelment as Additional Secretary/Secretary to the Government of India was considered on the basis of incomplete ACRs and therefore the authority should be directed to complete his CR dossiers and then reconsider his case for empanelment and then he also alleged that some of the officers were biased against him and their administration is vitiated by mala fides. These are not the facts of the present case, but what has been observed by Supreme Court in Satya Narain Shukla, supra in response to the arguments of the appellant in that case that authorities be directed to streamline the whole procedure so that even remarks like ‘good’ or ‘very good’ made in ACRs should be made compulsorily communicable and on that basis observation of the Supreme Court that it was not the Court’s concern to issue such direction and it is for the Government to consider how to streamline the procedure for selection, should now be considered in the light of authoritative pronouncement of three-Judge Bench in Sukhdev Singh, supra which has also taken note of by another three Judge Bench judgment of Supreme Court in Abhijit Ghosh, supra, in which the proposition of law first propounded in U.P. Jal Nigam, supra and then reiterated in Dev Dutt, supra, has been approved, thus making the communication of even downgrading entries necessary so as to enable the concerned officer to make a representation for up gradation of such remarks before such entries can be acted upon. In view of what we have discussed above, we do not find any infirmity in the judgment passed by the Tribunal dated 30.10.2015. The writ petition is therefore dismissed.