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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