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REPORTABLE  IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

    CIVIL APPEAL NO. 888 OF 2019 (Arising out of SLP(C) 32073 of 2016)

ANIL KUMAR                                 Appellant(s)

                               VERSUS

UNION OF INDIA AND ORS                     Respondent(s)

JUDGMENT

Dr. Dhananjaya Y. Chandrachud, J.

Leave granted.

The appellant was aggrieved by the rejection of his claim

for financial upgradation by the Council for Scientific and

Industrial Research (“CSIR”) with effect from 10 May 2011. He

was also aggrieved by not being promoted to the post of Senior

Controller of Administration / Senior Deputy Secretary in Pay

Band-4 i.e. Rs.37,400 – 67,000 with a grade pay of Rs. 8700 in

respect of vacancies for 2013-2014 under the CSIR Recruitment &

Promotion Rules for Administrative Staff, 1982.

He moved the Central Administrative Tribunal, Chandigarh.

The Tribunal did not find any substance in his grievance for

the reason that he did not fulfil the benchmark of “Very Good”

for financial upgradation. The Tribunal was of the view that

CSIR is an autonomous body and that the circulars issued by the

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Union of India would not ipso facto apply.    

The grievance of the appellant was that the failure to

communicate the Annual Confidential Reports in which he had

failed to meet the benchmark violated the O.Ms issued by the

Department of Personnel and Training.     

The Tribunal rejected that contention holding that since

CSIR had adopted the requirement of conveying the ACRs from a

particular  date  in  the  future,  the  decision  could  not  be

questioned.   On the issue of promotion, it has been held that

this  involved  a  selection  on  the  basis  of  performance  in

service  and  in  the  interview  and  since  the  Departmental

Promotion Committee had graded the appellant as “good”, he was

not  considered  for  promotion.  This  view  of  the  Central

Administrative Tribunal was challenged before the High Court of

Punjab and Haryana.

By a judgment dated 13 July 2006, the writ petition filed

by the appellant was dismissed.     

The  first  grievance  of  the  appellant  was  that  he  was

entitled to financial upgradation under the MACP scheme adopted

by  CSIR. It is not in dispute that the benchmark prescribed

was “Very Good” for financial upgradation to the grade pay of

Rs. 7600/- and above.  CSIR, by its letter dated 30 December

2013, notified the eligibility of the appellant for the grant

of  financial  upgradation  with  effect  from  10  May  2011.

Similarly, by its circular dated 6 February 2014, CSIR issued

an All India Final Seniority List of Common Cadre Officers as

on 1 January 2014.   The name of the appellant stood at Serial

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No.  2  in  the  category  of  Deputy  Secretary/Controller  of

Administration.

On 9 May 2014, CSIR declared the result of the exercise

conducted  by  the  Screening  Committee  which  met  on  21  April

2014. The name of the appellant did not appear in the list of

officers for financial upgradation from 10 May 2011.

The  ACRs  of  the  appellant  were  below  the  benchmark

required  for  certain  years  namely  2003-2004,  2008-2009  and

2009-2010.

The  gradings  were  eventually  communicated  to  the

appellant on 9 July 2014 to which he submitted a representation

and appeared for the interview for regular promotion for 2013-

2014.  The  grievance  is  that  the  representation  was  not

considered.When  the  panel  for  the  post  of  Senior  Deputy

Secretary/Senior Controller of Administration for 2013-2014 was

notified, officers junior to the appellant were empaneled for

promotion.    

The appellant was neither granted a financial upgradation

nor  was  he  promoted  as  a  part  of  the  exercise  of  regular

promotion to the higher post.

The  High  Court  affirmed  the  view  of  the  Tribunal  and

rejected the writ petition filed by the appellant.

In Dev Dutt vs. Union of India & Ors.1  a two Judge Bench

of this Court held that fairness in public administration and

transparency  require  that  all  entries  in  the  Annual

Confidential Reports of a public servant must be communicated

1(2008) 8 SCC 725

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within a reasonable period in order to enable the employee to

make a representation for upgradation.  The view of the Court

was that non-communication of entries in the ACRs has civil

consequences since it may affect the chances of the employee

for promotion and other benefits.  A failure to communicate

would  be  arbitrary.   This  Court  held  that  these  directions

would  apply  to  employees  of  statutory  authorities,  public

sector corporations and other instrumentalities of the State,

in addition to government servants.    

A three Judge Bench of this Court has in  Sukhdev Singh

vs. Union of India & Ors.2  affirmed the correctness of the view

taken in  Dev Dutt (supra) noting that an earlier three Judge

Bench in Abhijit Ghosh Dastidar vs. Union of India & Ors.3  had

adopted the same principle.

The  three  Judge  Bench  in  Sukhdev  Singh  (supra),  held

thus:

“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

2 (2013) 9 SCC 566 3 (2009) 16 SCC 146

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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.”

In view of the above statement of law, both the Tribunal

and the High Court were in error in coming to the conclusion

that CSIR being an autonomous entity and having adopted the

O.Ms of the Department of Personnel and Training with effect

from a specified date, the appellant could not make a grievance

of the non-communication of the ACRs for the relevant period.

The  failure  to  communicate  the  ACRs  deprived  the

appellant of the opportunity to submit his representation in

the  matter  of  financial  upgradation.   Subsequently,  the

appellant  was  furnished  with  an  opportunity  to  submit  his

representation  before  his  case  was  taken  up  for  regular

promotion, but his representation was not considered.

The appellant did not have the benefit of submitting his

representation when the Screening Committee took up the case

for financial upgradation.  CSIR by reason of its autonomy may

have  certain  administrative  privileges.  No  authority  can,

however, claim a privilege not to comply with a judgment of

this Court.  Once the law was enunciated in Dev Dutt’s case

(supra),  all  instrumentalities  of  the  State  were  bound  to

follow the principles laid down by this Court.  CSIR was no

exception.

The  appellant  has  since  retired  from  service  on  30

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September 2014.  

The grant of MACP benefit is not a matter of right and it

is after the Screening Committee finds that the officer meets

the benchmark that an upgradation can be granted.

Hence, we are of the view that the appellant should be

granted  an  opportunity,  within  a  period  of  four  weeks  from

today to submit his representation in respect of the ACRs for

the concerned years where he did not fulfil the benchmark for

financial  upgradation.  Upon  the  submission  of  his

representation,  the  respondents  shall  consider  it  and

communicate the outcome to the appellant within a period of two

months thereafter.   Based on that decision, the case of the

appellant for financial upgradation shall be considered afresh.

In the event his ACRs for the relevant period are upgraded,

the case for financial upgradation shall be determined within a

period of three months thereafter.

We also direct that in the event that the ACRs for the

relevant period are upgraded, the case of the appellant for

promotion to the post of Senior Deputy Secretary/Controller of

Administration shall be considered afresh by the Departmental

Promotion Committee expeditiously.   This exercise shall be

carried out with reference to the date on which his junior in

service came to be promoted.

In the event that the case of the appellant is considered

favourably, he would be entitled to all consequential benefits

which flow from the financial upgradation and upon the grant of

regular promotion to the post of Senior Deputy Secretary.

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The appeal is, accordingly, allowed and the judgment of

the High Court shall stand set aside.

Pending application(s), if any, shall stand disposed of.

No order as to costs.

 ...…...….......………………........J.                                     (DR. DHANANJAYA Y. CHANDRACHUD)

…...…........……………….…........J.                        (HEMANT GUPTA)

NEW DELHI,  January 21, 2019

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ITEM NO.66               COURT NO.11               SECTION IV-B

              S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (C)  No(s).  32073/2016

(Arising out of impugned final judgment and order dated  13-07-2016 in CWP No. 13390/2016 passed by the High Court Of Punjab & Haryana At Chandigarh)

ANIL KUMAR                                         Petitioner(s)

                               VERSUS

UNION OF INDIA AND ORS                             Respondent(s)

                                                Date : 21-01-2019 This petition was called on for hearing today.

CORAM :           HON'BLE DR. JUSTICE D.Y. CHANDRACHUD          HON'BLE MR. JUSTICE HEMANT GUPTA

For Petitioner(s) Mr. D.N. Goburdhun, Adv.

                   Mr. Prashant Chaudhary, AOR Mr. R.K. Singh, Adv. Mr. Syed Jafar Hussain, Adv.

                   For Respondent(s)                     Mr. Jayesh K. Unnikrishnan, AOR

Mr. Vijay Pratap Singh, Adv.                      

         UPON hearing the counsel the Court made the following                              O R D E R

Leave granted.

The  appeal  is  allowed  in  terms  of  the  signed  reportable judgment.

Pending application(s), if any, shall stand disposed of.

(MANISH SETHI)                                  (SAROJ KUMARI GAUR) COURT MASTER (SH)                                  BRANCH OFFICER

(Signed reportable judgment is placed on the file)