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  IN THE SUPREME COURT OF INDIA     CIVIL APPELLATE JURISDICTION

CIVIL APPEAL  NO(S).  8006-8007/2003

PRABHU DAYAL KHANDELWAL            APPELLANT(S)

VERSUS

CHAIRMAN, U.P.S.C. & ORS. RESPONDENT(S)                 

   O R D E R

J.S. Khehar, J.

1. The  claim  of  the  appellant-Prabhu  Dayal

Khandelwal was to be considered for promotion from

the post of Commissioner of Income Tax to that of

Chief Commissioner of Income Tax.  55 vacancies in

the cadre of Chief Commissioner of Income Tax arose

in the year 2000-2001, and a further 46 vacancies

arose during the year 2001-2002.

2. It  is  not  a  matter  of  dispute,  that  the

benchmark  for  promotion  to  the  post  of  Chief

Commissioner of Income Tax, under the prevailing

DoPT guidelines was “very good”.  In other words

only such of the Commissioners of Income Tax, whose

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service record was “very good” would be treated as

satisfying the “merit” component in the process of

selection.  When the claim of the appellant arose

for  consideration,  the  five  Annual  Confidential

Reports  which  were  liable  to  be  taken  into

consideration  were,  for  the  years  1995-1996  to

1999-2000.  Of the aforesaid Reports, in three the

appellant  was  graded  as  “good”  (for  the  years

1995-1996,  1996-1997  and  1998-1999),  and  in  the

remaining two he was  graded as “very good” (for

the years 1997-1998 and 1999-2000). On account of

the fact, that the appellant did not satisfy the

benchmark stipulated in the DoPT guidelines, he was

not considered fit for promotion, to the post of

Chief Commissioner of Income Tax.   

3. The appellant raised a challenge against the

action  of  the  respondents/authorities,  in

superseding his claim for promotion to the post of

Chief Commissioner of Income Tax, by filing O.A.

No.290 of 2001, before the Central Administrative

Tribunal,  Calcutta  Bench,  on  the  ground  that

uncommunicated  Annual  Confidential  Reports  could

not  be  taken  into  consideration,  to  defeat  his

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claim for promotion.  The pointed contention of the

respondent, in this behalf was, that all the three

Annual Confidential Reports in which he had been

graded  as  “good”  (detailed  above)  had  not  been

communicated  to  him.  The  Administrative  Tribunal

accepted  the  prayer  made  by  the  appellant  and

accordingly passed the following directions:-

“19. In  view  of  the  above,

we  find  merit  in  both  the

applications.  We, therefore, allow

both  the  applications.   Since  the

appellants have not been found unfit

for  promotion  in  the  over  all

assessment of the DPC meeting held on

February 5 and 6, 2001, we direct all

the  respondents  viz.  Secretary,

Deptt.  of  Revenue,  Chairman  CBDT,

Member  CBDT  and  Chairman,  UPSC  to

reconsider  the  cases  of  both  the

applicants by holding the meeting of

Review  DPC  on  urgent  basis  on  the

basis  of  our  above  observations

keeping in view the assessment made

by  the  DPC  in  the  meeting  held  on

February  5  and  6,  2001  and  to

recommend their case within a period

of  three  weeks  from  the  date  of

receipt  of  this  order  to  the

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competent  authority  for  further

necessary action including grant of

all the consequential benefits to the

applicants  from  the  date  their

immediate juniors have been granted

as a result of recommendations of the

DPC meeting held on February 5 and 6,

2001 within a further period of three

weeks and communicate the final order

to  the  applicants  within  a  week

thereafter.”

4. The  aforesaid  order  passed  by  the

Administrative Tribunal, was assailed by the Union

Public Service Commission, as also, the Union of

India, before the High Court of Calcutta, by filing

separate writ petitions.  The High Court accepted

the  prayer  made  by  the  Union  Public  Service

Commission  as  well  as  the  Union  of  India  while

disposing of W.P.C.T. No.772 of 2002 and W.P.C.T.

No.803 of 2002, vide its order dated 20.12.2002.

Dissatisfied  with  the  above  order,  the

appellant-Prabhu  Dayal  Khandelwal  has  approached

this Court, through the instant civil appeals.   

5. In so far as the issue of non-consideration of

the claim of the appellant is concerned, we are

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satisfied that the proposition of law relevant for

the controversy in hand,  was declared upon by this

Court in Abhijit Ghosh Dastidar v. Union of India

and  others,  (2009)  16  SCC  146,  wherein  a

three-Judge Division Bench of this Court, held as

under:-   

“7. It is not in dispute that CAT, Patna  Bench  passed  an  order recommending  the  authority  not  to rely on the order of caution dated 22.09.1997 and the order of adverse remarks dated 09.06.1998. In view of the said order, one obstacle relating to his promotion goes.  8. 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, non-communication of entries in the Annual  Confidential  Report  of  a public  servant  whether  he  is  in civil, judicial, police or any other service  (other  than  the  armed forces),  it  has  civil  consequences

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because it may affect his chances of promotion or getting other benefits. Hence,  such  non-communication  would be arbitrary, and as such violative of  Article  14  of  the  Constitution. The same view has been reiterated in the above referred decision [Dev Dutt v. Union of India and Others, (2008) 8  SCC  725]  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.”   

6. The aforesaid position of law has again been

affirmed by this Court in Sukhdev Singh v. Union of

India and Others, (2013) 9 SCC 566, wherein another

three-Judge  Division  Bench  of  this  Court,  has

concluded 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

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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.”  

7. In  the  above  view  of  the  matter,  we  are

satisfied  that the  impugned order  passed by  the

High Court, deserves to be set aside, inasmuch as,

the claim of the appellant could not be ignored by

taking  into  consideration,  uncommunicated  Annual

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Confidential  Reports  for  the  years  1995-1996,

1996-1997 and 1998-1999, wherein the appellant was

assessed  as  “good”.   In  the  absence  of  the

aforesaid  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,  to  the  post  of  Chief

Commissioner of Income Tax, on the basis of the

then prevailing DoPT guidelines, and the remaining

valid Annual Confidential Reports.   

8. On the issue, whether the representations filed

by the appellant against the Reports for the years

1995-1996, 1996-1997 and 1998-1999 need to be taken

to their logical conclusion, we are of the view,

that since almost two decades have passed by since

the  aforesaid  Annual  Confidential  Reports  were

recorded,  it  would  be  too  late  in  the  day  to

require  the  Authorities  to  adjudicate  upon  the

representations made by the appellant as against

the uncommunicated Annual Confidential Reports.

9. In  the  above  view  of  the  matter,  we  are

satisfied,  that  the  respondents  ought  to  be

directed to reconsider the claim of promotion of

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the appellant, to the post of Chief Commissioner of

Income Tax, for the vacancies which arose during

the years 2000-2001 and 2001-2002 on the basis of

the communicated reports for the years 1997-1998

and 1999-2000, within a period of three months from

today.  Ordered accordingly.

10. In case the appellant is found to be entitled

for promotion to the post of Chief Commissioner of

Income Tax, he shall be promoted to the said post,

with effect from the date of his entitlement.  In

such an eventuality, he shall also be entitled to

all arrears of salary, as would have been payable

to  him,  if  he  had  been  promoted  as  Chief

Commissioner  of  Income  Tax  at  the  right  time.

Simultaneously, he would be entitled to revision of

his retiral benefits.

11. In  case  the  appellant  is  found  suitable  for

promotion,  this  order  should  not  be  taken  as

permitting the authorities, to interfere with the

promotions already made.  Suffice it to state, that

to accommodate the appellant, it shall be open to

the  authorities  to  create  a  notional  post,  for

giving effect to the instant order.

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12. To the extent indicated above, the appeals are

allowed.

................................J. [JAGDISH SINGH KHEHAR]

................................J. [ADARSH KUMAR GOEL]

NEW DELHI; JULY 23, 2015.

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