SAROJ KUMAR Vs U.O.I .
Bench: DIPAK MISRA,PRAFULLA C. PANT
Case number: C.A. No.-006081-006081 / 2015
Diary number: 23286 / 2014
Advocates: VIVEK NARAYAN SHARMA Vs
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Reportable
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
Versus
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
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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.
2. We have heard learned counsel for the parties and
perused the papers on record.
3. 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
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his utter shock, ignoring him, juniors to him were
promoted.
4. 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 others1. 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 others2 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
1 (2008) 8 SCC 725 2 (2009) 16 SCC 146
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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.
5. 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
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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.
6. 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.
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7. 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
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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
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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.”
8. 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
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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 India3, 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 rejected.
9. 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
3 (2013) 9 SCC 566
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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.
10. Therefore, we do not find any error in the impugned
order passed by the High Court.
11. Accordingly the appeal is dismissed. There shall be no
order as to costs.
.….................................J. [Dipak Misra]
......................................J. [Prafulla C. Pant]
New Delhi; August 18, 2015