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Himachal Pradesh High Court · body

2020 DIGILAW 690 (HP)

Jai Gopal Lodta v. State of Himachal Pradesh

2020-10-07

SANDEEP SHARMA

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JUDGMENT Sandeep Sharma, J. - Precise question, which arises for consideration of this Court in the case at hand is "whether ACRs having adverse entries could have been taken into consideration by the Departmental Promotion Committee while considering the case of the petitioner for promotion to the higher post or not?" 2. Before adverting to the factual matrix of the case, it would be apt to take note of the law laid down by the Hon'ble Apex Court in case titled Dev Dutt v. Union of India and Ors., (2008) 8 SCC 725 , wherein it has been categorically held that all gradings whether "very good", "good", "average" or "poor", are required to be communicated to the employees working in the government offices, statutory bodies, public sector undertakings or other state instrumentalities. It has been further held in the aforesaid judgment that gradings are required to be communicated within the reasonable period so that employee concerned gets an opportunity of representation for improvement of his grading and representations are to be decided fairly and within reasonable period by an authority higher than the one which made the entry. Relevant paras of the aforesaid judgment are as under:- "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. 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 noncommunication 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 upgradation. Hence noncommunication 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. 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). 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). 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 natural justice, e.g. the requirement to give reasons vide S.N. Mukherji vs. Union of India, (1990) AIR 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. 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. 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 corporations and other instrumentalities of the State (in addition to Government servants)." 3. Reliance is also placed on judgment passed by the Hon'ble Apex Court in Sukhdev Singh v. Union of India and Ors., (2013) 9 SCC 566 , wherein it has been held as under: "7. A three Judge Bench of this Court in Abhijit Ghosh Dastidar vs. Union of India and others9 followed Dev Dutt3. In paragraph 8 of the Report, this Court with reference to the case under consideration held as under: "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, noncommunication 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 get other benefits. Hence, such noncommunication 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." 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. The respondent has no case that the appellant had ever been informed of the nature of the grading given to him." 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 upgradation of the remarks entered 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 reasonable period." 4. It is quite apparent from the aforesaid exposition of law laid down by the Hon'ble Apex Court that every entry in the ACR is required to be communicated to the public servant as it helps an employee to work harder and achieve more that helps in improving his work and better results, but at the same time, noncommunication of adverse entries recorded in the ACRs would be violative of Article of 14 of the Constitution of India. 5. Now, in the aforesaid backdrop, this Court would proceed to consider the case of the petitioner, who has specifically alleged that adverse entries recorded in the ACR for the year 2008- 09 and 2009-10 were never communicated to him and as such, same could not have been taken into consideration by the Departmental Promotion Committee while considering his case for promotion to the post of Superintendent, Model Central Jail. Petitioner joined the Department of Prisons after being selected through HP Public Service Commission as an Assistant Superintendent Jails on 17.7.1994, whereafter in the year, 2009, he was promoted as Chief Welfare Officer. Next higher promotional post from the post of Assistant Superintendent Jails is that of Superintendent, Jail. Petitioner joined the Department of Prisons after being selected through HP Public Service Commission as an Assistant Superintendent Jails on 17.7.1994, whereafter in the year, 2009, he was promoted as Chief Welfare Officer. Next higher promotional post from the post of Assistant Superintendent Jails is that of Superintendent, Jail. Undisputedly, petitioner and respondent No.3 are/were in the feeder category of the post of Superintendent, Model Central Jail, but respondent is junior to the petitioner as he joined the department nine months seven days after the petitioner. Petitioner has alleged that meeting of Departmental Promotion Committee convened on 30.11.2013 was not constituted as per Mandate of the R&P Rules meant for the post of Superintendent, Model Central Jail. R&P Rules provide that DPC is to be presided by the Chairman, HP Public Service Commission or a member to be nominated by him, but as per averments contained in the petition, neither Chairman himself nor any member nominated by him was associated while convening the meeting of DPC held on 30.11.2013. While considering petitioner and respondent No.3 for promotion to the post of Superintendent, Modal Central Jail, Departmental Promotion Committee allegedly took into consideration ACRs of the petitioner for the years, 2008-09 and 2009-2010, wherein admittedly adverse remarks were made i.e. "Average". 6. Mr. Sudhir Bhatnagar, learned Additional Advocate General, while referring to the reply filed by the respondents states that though there is provision of composition of DPC in the R&P Rules for the said post, but such R&P Rules do not provide for complete composition of the DPC and as such, in view of the aforesaid ambiguity in the R&P Rules, DPC was constituted in terms of instructions contained in Chapter 16 of Hand Book of Personnel Matters, Volume-1, which provides for composition and detailed procedure for the DPC in the matter of recruitment and promotion of a Government Servant in a particular cadre. Learned Additional Advocate General while fairly conceding that ACRs for the year, 2008-09 and 2009-10 were taken into consideration by the DPC while considering petitioner for the promotion to the post of Superintendent Model Central Jail, contended that since petitioner was recorded "average" in the aforesaid ACR's, same being not "adverse" was not required to be conveyed to the petitioner. Aforesaid argument of learned Additional Advocate General deserves outright rejection being devoid of merits. Aforesaid argument of learned Additional Advocate General deserves outright rejection being devoid of merits. Respondents in para-7 of their reply while admitting ambiguity in the R&P Rules as far as composition of DPC is concerned, have categorically admitted that entries "average" recorded in the ACR of the petitioner for the year, 2008-09 and 2009-10 were not communicated and as such, same could not be taken into consideration by the DPC while considering the case of the petitioner for promotion to the higher post i.e. Superintendent Model Central Jail. 7. Hon'ble Apex Court in Dev Dutt's and Sukhdev Singh's cases (supra) have categorically held that every entry in ACR be it "poor", "average", "good" or "very good", must be communicated to the employee within a reasonable period and as such, there is no force in the submission made on behalf of the respondents that since petitioner was given "average in his ACRs for the period in question, same was not required to be communicated. Once adverse entries were not communicated to the petitioner, he was deprived of making representation to the higher authority. Very purpose of communicating adverse entry in the ACR of public servant is to help him/her to work harder and achieve more and secondly and most importantly, he/she being made aware about the adverse entries in the ACRs can make representation for upgradation of the entries recorded in the ACRs. Since there is no dispute, rather admission on the part of the respondents that adverse entry in the ACRs taken into consideration by the Departmental Promotion Committee for considering case of the petitioner for promotion were not communicated to him, decision of the respondents to not to promote the petitioner alongwith respondent No.3 deserves to be rectified in accordance with law being in violation of law laid down by the Hon'ble Apex Court in Dev Dutt and Sukhdev's case (supra). 8. Consequently, in view of the above, present petition is allowed and petitioner is held entitled to promotion to the post of Superintendent, Model Central Jail, from the date person junior to him was promoted to the post of Superintendent, Model Central Jail vide notification dated 3.12.3024 (Annexure P-4) with all consequential benefits. 9. In the aforesaid terms, petition stands disposed of, so also pending application(s), if any.