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Wednesday, August 19, 2015

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.”

                        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


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

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

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.

                                                               [Dipak Misra]

                                                          [Prafulla C. Pant]
New Delhi;
August 18, 2015

[1]    (2008) 8 SCC 725
[2]    (2009) 16 SCC 146
[3]    (2013) 9 SCC 566

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