Judgment · High Court · 2012

01.10.1990 and ultimately absorbed in IWAI w.e.f. 01.01. 1993, his seniority cannot be counted w.e.f. 01.08.1984 i.e. from the date of in itial deputation and name of respondent No.9, Shri Dandapat, did not even appear in the original seniority list of Deputy Directors published on 21.02.1992. But arbitrarily, name of respondent No.9, Shri Dandapat, had been subsequently inco rporated in the seniority list of the Deputy Directors published on 25.05.1998 b y placing him at Sl.No.1. It is further case of the petitioner that respondent N o.9, Shri Dandapat would not be entitled for the benefit of the past service ren dered in the previous organisation for the purpose of his seniority in the new o rganisation; and as such in all fitness of things, seniority of respondent No.9 ought to have been counted from 01.01.1993 only i.e. the date of his permanent a bsorption in IWAI. It is also the case of the petitioner that the petitioner is senior to both respondents No.8, Shri R.P.Khare and No.9, Mr.S.Dandapat, in the cadre of Deputy Director.

The petitioner attained eligibility for promotion to the next hi [6] gher post i.e., Director as early as 1992 under of the Recruitment Rules (R.R) f or the post of Director. The post of Director is a selection post and categorise d as Grade ’A’ post, is to be filled up on the basis of merit under the R.R. as per the professed norms of the Government. There are five posts of Directors in the IWAI. As per the R.R, 1/3rd of the posts is to be filled up by direct recrui tment and the balance 2/3rd by promotion from amongst the eligible Deputy Direct ors. Actions were initiated for filling up the vacant posts of Directors, DPC me eting was held in March, 2001 i.e. 13.03.2001. The ACR of the petitioner was man ipulated in an adverse manner just before holding the DPC meeting in 2001, i.e. 13.03.2001. While the petitioner was working at Regional Office, IWAI, Patna, du ring the period 1998-1999 and 1999-2000, his controlling officers were respectiv ely, Shri S.K. Dhawan and Shri Bijoy Kant, under whose supervision the petitione r worked.

But before holding the DPC in March 2001, deliberately got the ACRs of the petitioner for the period 1998-1999 and 1999-2000 constructed by one A.Sark ar, who was never Controlling Officer of the petitioner for the period stated ab ove and never supervised his work whatsoever. As such, he (A.Sarkar) was not aut horised to write ACR of the petitioner for the aforesaid period as Reporting Off icer. It is also learnt that the aforesaid Shri A.Sarkar had not only fabricated the ACRs of the petitioner for the year 1998-1999 and 1999-2000 with criminal c onspiracy but also attached a false and ill motivated adverse inspection report in the column of ’integrity’ of the petitioner without any clear comment and als o without providing any opportunity of show cause to the petitioner with the int ention of prejudicing the promotional aspects. But during the last long 14 years of his service there was no communication to the petitioner about any of his la pses and shortcomings whatsoever at any point of time nor any adverse entries in the ACR was communicated to the petitioner nor there was any warning/proceeding initiated against him.

In the case of respondent No.9, Shri S.Dandapat, he was asked to submit explanation for certain irregularities of the works for the said period i.e. 1998-1999 and 1999-2000; but surprisingly petitioner later on learn t that for such irregularities for which explanations had been called for from r espondent No.9, Shri S.Dandapat, nothing was reflected in the ACR of respondent No.9. Again in the case of respondent No.8, Mr.RP Khare, a special report was ca lled for, for certain lapses and the said lapses on the part of respondent No.8 was cleared just before the said DPC held on 13.03.2001. Over and above, in the case of petitioner, his ACR had been deli berately down graded by the Reviewing Officer, Shri R.P.Nair by ignoring ’very g ood’ report of the Reporting Officer. The said DPC held on 13.03.2001 had acted on the un-communicated adverse entries/report attached to the ’integrity’ column of the ACR of the petitioner and downgraded ACR of the petitioner and not recom mended the petitioner for promotion to the post of Director.

As stated above, as nothing had been shown in the ’integrity’ co lumn of respondent No.9, Shri S.Dandapat, who had have the alleged lapses or/irr egularities like those of the petitioner and also as on the basis of special rep ort, shortcomings or lapses of respondent No.8, R.P.Khare had been cleared just before the DPC, i.e. 13.03.2001, respondent Nos.8 and 9 had been recommended by the said DPC held on 13.03.2001 for promotion to the post of Director. [7] It is the case of the respondents in their joint affidavit that the petitioner had submitted his appraisal to the administration for the years 1 998-1999 and 1999-2000 on 08.01.2001 and the then Chief Engineer, Shri S.K.Dhawa n and Shri N.Bijoy Kant had left IWAI after completion of tenure of deputation o n 02.11.1998 and 31.03.2000 respectively and reporting of the ACR was done by A. Sarkar, who was, at that time posted as Director, a post senior to the Deput y Director (the petitioner).

To expedite the process of selection as early as po ssible, Shri A.Sarkar, as Director reported upon the ACRs of the petitioner for the years, 1998-1999 and 1999-2000 which were reviewed by the members (technical ) otherwise there would be inordinate delay in completion of the ACRs of the can didates in consideration zone, had they been sent to those Chief Engineers who h ad already completed their tenure and left office. The DPC held on 13.03.2001 ha d acted on the adverse secret note attached to the ’integrity’ column of the ACR of the petitioner for the year 1999-2000 i.e. secret noting, containing the fin ding of the committee constituted to examine the irregularities in execution of the bundling works i.e., N.W.1 during 1998-1999 working season. The DPC on such consideration had not recommended the petitioner. The DPC had also considered f ive preceding ACRs of respondent Nos.8 and 9 and recommended respondent Nos.8 an d 9 for promotion to the post of Director.

Relevant portion of the joint affidav it in opposition of the respondents read as follows: & &. With regard to the column of integrity in the ACR of the petitioner (cid:28) for the year 99-2000 is concerned it is admitted that the column of integrity wa s kept blank and a secret note containing findings of the Committee constituted to examine the irregularities in the execution of the bundling of work NW-1 duri ng 1998-99 working season was enclosed with the ACR. The DPC have taken note of the secret notes attached to the ACR and performance of Shri Arun Roy for the pr eceding five years, was evaluated and on evaluation of the ACR along with the at tached Secret Note the DPC had placed him after Shri R.P.Khare. Further, it is t o be reiterated that decision of DPC was based on the assessment of the entire A CR records of the officers and not one or two ACRs. &.. (cid:29) [8] After the DPC was over, i.e.

DPC dated 13.03.2001, in order to j ustify the un-communicated adverse note attached to the ’integrity’ column of AC R of the petitioner, which had already been acted upon by the DPC held on 13.03. 2001, the department issued a confidential show cause notice vide letter No.IWAI /R.R/1/20/98 Part-III dated 07.01.2002 to the petitioner as well as respondent N o.9, Shri S.Dandapat. As stated above, in the case of respondent No.9, S.Dandapa t, nothing had been indicated in the ’integrity’ column of his ACR. This, accord ing to the petitioner, was done with a deliberate attempt to justify the inclusi on of secret note against the ’integrity’ column of the petitioner and save the administrative decision to deprive the petitioner of his regular promotion. The petitioner had submitted clarification and explanation vide his letter dated 21. 02.2002 to the Department. The Department accepted the explanation and justifica tions and exonerated vide order No.IWAI/R.R./1/20/98 Pt-III dated 11.12.2003 iss ued by the Secretary and CVO. [9] It is also stated that on the order of the competent authority, a review DPC was held on 16.04.2011 on the strength of a special report called f or in respect of the petitioner, but the review DPC did not consider the compara tive merit of the petitioner and respondent Nos.8 and 9.

The review DPC recommen ded the petitioner for promotion against the resultant vacant post of Director a risen due to appointment of Shri A.R.Ghatak on ad hoc basis as Hydrographic Chie f. On the recommendation of the said DPC held on 13.03.2001 respondent Nos.8 and 9 i.e. Shri RP Khare and S.Dandapat were promoted to the post of Directors regu larly but the petitioner was promoted to the post of Director only on ad hoc bas is until further order vide Office order No.3-IWAI/Estt/two-third/2001 dated 26. 04.2001. It is further case of the petitioner, which is substantiated by [10] the record, that the DPC deliberately acted upon the incomplete and downgraded A CR of the petitioner for the year 1998-1999 and 1999-2000 and also that the DPC had acted upon the said adverse entry/adverse un-communicated note attached to t he ACR of the petitioner and also the respondents had admitted in their joint af fidavit that DPC held on 13.03.2001 had acted upon the said un-communicated adve rse note attached to the ACR of the petitioner and also that said A.Sarkar the t hen Director, who had placed the Secret Note before the DPC in respect of the pe titioner was also a member of the DPC held on 13.03.2001 and review DPC held on 16.04.2001.

It is now well settled dictum in service jurisprudence that an u [11] n-communicated adverse report should not form the foundation and also that any a dverse entry need to be communicated to the incumbent i.e. to the government ser vant. Any adverse entry which would have civil consequences should be communica ted to the concerned employee and non communication of the adverse entries, not only deprive the employee of the opportunity of making a representation against it but also would affect all his chance of being promoted. Hence, such non comm unication is arbitrary and violative of Article 14 of the Constitution. [Ref: Vi lay Kumar Vs State of Maharashtra: 1998 Supp SCC 674 ]. [12] 1979) 2 SCC 368 (para 17 of the SCC) held that: The Apex Court in Gurdial Singh Fiji Vs State of Punjab & Ors: ( The principle is well settled that in accordance with the rules of natur (cid:28)17. al justice, an adverse report in a confidential roll cannot be acted upon to den y promotional opportunities unless it is communicated to the person concerned so that he has an opportunity to improve his work and conduct or to explain the ci rcumstances leading to the report.

Such an opportunity is not an empty formality , its object, partially, being to enable the superior authorities to decide on a consideration of the explanation offered by the person concerned, whether the a dverse report is justified. Unfortunately, for one reason or another, not arisin g out of any fault on the part of the appellant, though the adverse report was c ommunicated to him, the Government has not been able to consider his explanation and decide whether the report was justified. In these circumstances, it is diff icult to support the non-issuance of the integrity certificate to the appellant. The chain of reaction began with the adverse report and the infirmity in the li nk of causation is that no one has yet decided whether that report was justified . We cannot speculate, in the absence of a proper pleading, whether the appellan t was not found suitable otherwise, that is to say, for reasons other than those connected with the non-issuance of an integrity certificate to him.

(cid:29) [13] The Rules of natural justice are not codified nor there is strai ght jacket formula, however, principles of natural justice is clear that one sho uld not be condemned unheard. The authority concerned is required to act fairly and justly. The Apex Court in A.K.Kraipak Vs Union of India: (1969) 2 SCC 262 (p ara 20 of the SCC) held that: (cid:28) &. The concept of natural justice has undergone a great deal of change (cid:28)20. in recent years. In the past it was thought that it included just two rules, nam ely,: (1) no one shall be a judge in his own case (nemo debet esse judex propria causa) and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule w as envisaged and that is that quasi-judicial enquiries must be held in good fait h, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice (cid:29). [14] The Apex Court in K.I.Shepheard Vs Union of India: (1987) 4 SCC 431 held that even administrative decisions have to be in accordance with the na tural justice if they have civil consequences.

It was also held that natural jus tice has various facets and acting fairly is one of them. The Apex Court in U.P. Jalnigam & Ors Vs Prabhat Chandra Jain & Ors: (1996) 2 SCC 363 held that down gr ading of ACR in violation of natural justice cannot be sustained. Para 3 of the SCC in U.P.Jalnigam & Ors’s case (supra) read as follows: We need to explain these observations of the High Court. The Nig (cid:28)3. am has rules, whereunder an adverse entry is required to be communicated to the employee concerned, but not downgrading of an entry. It has been urged on behalf of the Nigam that when the nature of the entry does not reflect any adverseness that is not required to be communicated. As we view it the extreme illustration given by the High Court may reflect an adverse element compulsorily communicabl e but if the graded entry is of going a step down, like falling from ’very good’ to ’good’ that may not ordinarily be an adverse entry since both are a positive grading.

All that is required by the authority recording confidentials in the s ituation is to record reasons for such downgrading on the personal file of the o fficer concerned, and inform him of the change in the form of an advice. If the variation warranted be not permissible, then the very purpose of writing annual confidential reports would be frustrated. Having achieved an optimum level the e mployee on his part may slacken in his work, relaxing secure by his one-time ach ievement. This would be an undesirable situation. All the same the sting of adve rseness must, in all events, not be reflected in such variations, as otherwise t hey shall be communicated as such. It may be emphasised that even a positive con fidential entry in a given case can perilously be adverse and to say that an adv erse entry should always be qualitatively damaging may not be true. In the insta nt case we have seen the service record of the first respondent.

No reason for t he change is mentioned. The downgrading is reflected by comparison. This cannot sustain. Having explained in this manner the case of the first respondent and th e system that should prevail in the Jal Nigam, we do not find any difficulty in accepting the ultimate result arrived at by the High Court. (cid:29) (emphasis supplied) [15] This Court (Division Bench) in Hemam Bihari Singh Vs State of Ma nipur & Ors : 2004(1) GLT 1 held that downgrading of ACR independently by the S election Committee is not permitted. Officer graded ’outstanding’ cannot be grad ed as ’very good’ nor bring him at par with others. Para 14 and 15 of the GLT in Hemam Bihari Singh’s case (supra) read as follows: We have considered the decisions in Kuldip Chand Vs State of H.P (cid:28)14. . & Ors: AIR 1997 SC 2606 and Union of India & Ors Vs Major General U.S.Sidhu, 1 996 (III) GLT 80. The judgments have been relied upon by Mr.Nemaichand, learned State Counsel in order to appraise the Court about the limitation while exercisi ng the powers of judicial review.

For the reasons stated above, we are of the op inion that the ratio available in the aforesaid two judgments are not applicable in the instant case. It is because, the procedure adopted by the DPC in the ins tant case has been held to be contrary to the provisions of law and beyond the p owers of the DPC. Downgrading may be permissible in cases for good reason solely for the purpose of evaluation of merit. An officer consistently graded ’Outstan ding’ cannot be downgraded as ’Very God’ in orders to bring him at par with othe rs, particularly when two of his seniors are mere diploma holders. Downgrading o f the remarks in the ACR of the appellant is the crux of the decision making pro cess and the same, when unfair and unjust, vitiates the selection process.

The entry of (cid:28)good (cid:29) should have been communicat ed to him as he was having (cid:28)very good (cid:29) in the previous year. In those circumstan ces, in our opinion, non-communication of entries in the annual confidential rep ort of a public servant whether he is in civil, judicial, police or any other se rvice (other than the armed forces), it has civil consequences because it may af fect his chances of promotion or getting other benefits. Hence, such non-communi cation would be arbitrary, and as such violative of ’Article 14 of the Constitut ion. The same view has been reiterated in the abovereferred decision (Dev Dutt c ase: (2008) 8 SCC 725)) SCC p.738, para 41) relied on by the appellant. Therefor e, the entries (cid:28)good (cid:29) if at all granted to the appellant, the same should not ha ve been taken into consideration for being considered for promotion to the highe r grade.

The respondent has no case that the appellant had ever been informed of the nature of the grading given to him. (cid:29) [18] Now the core question falls for consideration in the present cas e is (cid:28)is the action of the Department treating the petitioner unequally in refle cting his alleged lapses which had been exonerated later on, on the explanation made by the petitioner, with the respondent Nos.8 and 9, who had similar alleged lapses, in the given case, arbitrary, capricious and discriminatory and malafid e? (cid:29) Unbridled power cannot confer on the administrative authority; there should be guidelines and principles for exercising the power. In the absence of such gu idelines, it must be hold that it confers an unbridled power and is violative of Article 14 of the Constitution. The Apex Court in Uttar Pradesh Cooperative Sug ar Factories Federation Ltd Vs P.P.Gautam & Ors: (2008) 17 SCC 365 (para 2 of th e SCC) held that: The High Court has come to the conclusion that the aforesaid proviso con (cid:28)2. fers an unbridled power on the employer to require an employee to retire on his attaining the age of 55 years and conferment of such unbridled power is violativ e of Article 14 of the Constitution.

It is no doubt true that the order of compu lsory retirement is not penal in nature, and every employer has a right to requi re the employee to compulsorily retire in accordance with the relevant service r egulation, provided the non-continuance of service of the employee is held to be in public interest. The impugned regulation, however, dies not indicate that th e power under the second proviso could be exercised in public interest. To our q uery as to whether the employer has issued any guidelines for the exercise of po wer under the second proviso, and has indicated that such power could be exercis ed only in public interest, the answer was in the negative. In the absence of an y such guidelines, and in the absence of such provision in the proviso itself, t he conclusion of the High Court that it confers a unbridled power and is violati ve of Article 14 is unassailable. In fact, a decision of this Court on somewhat similar provisions in Srnior Supdt of Post offices V Izhar Husain: (1989) 4 SCC 318 fully supports the conclusion of the High Court.

We, therefore, do not find any merits in territorial constituencies his appeal requiring our interference. The appeal accordingly fails and is dismissed. (cid:29) [19] What is (cid:28)rbitrariness (cid:29) is discussed and demonstrated by the Apex Court in Asha Sharma Vs Chandigarh Administration & Ors: (2011) 10 SCC 86. Para 12, 13 and 14 of the SCC in Asha Sharma’s case (supra) read as follows: Arbitrariness in State action can be demonstrated by existence of differ (cid:28)12. ent circumstances. Whenever both the decisions-making process and the decision t aken are based on irrelevant facts, while ignoring relevant considerations, such an action can normally be termed as (cid:28)arbitrary (cid:29). Where the process of decision making is followed but proper reasoning is not recorded for arriving at a conclu sion, the action may still fall in the category of arbitrariness. Of course, suf ficiency or otherwise of the reasoning may not be a valid ground for considerati on within the scope of judicial review.

Rationality, reasonableness, objectivity and application of mind are some of the prerequisites of proper decision making . The concept of transparency in the decision-making process of the State has al so become an essential part of our administrative law. The Government is entitled to make pragmatic adjustments and policy deci 13. sions, which may be necessary or called for under the prevalent peculiar circums tances. The Court may not strike down a policy decision taken by the Government merely because it feels that another decision would have been more fair or wise, scientific or logical. The principle of reasonableness and non-arbitrariness in governmental action is the core of our constitutional scheme and structure. Its interpretation will always depend upon the facts and circumstances of a given c ase. Reference in this regard can also be made to Netai Bag v State of W.B.: (20 00) 8 SCC 262.

On perusal of t he records, it is clear that that incomplete ACR of the petitioner had been acte d upon by the DPC. For the incomplete ACR, DPC may refer to the G.I.,Dept of Per . & Trg. O.M. No.22011/5/86-Estt. (D), dated the 20th June, 1989 and Corrigendum, dated the 13th July, 1989, which is reproduced in Swamy’s Establishment and Adm inistration Compilation, as under: (cid:28)If two alternative eligibility conditions are prescribed and the officers satis fying these conditions are considered simultaneously instead of under a (cid:28)failing which (cid:29) clause, the DPC may consider the service record of all officers with par ticular reference to the ACRs (including ACRs in respect of service in the lower grade, if necessary) for the lesser number of years as between the two alternat ive periods of eligibility service or five years, whichever is longer. To cite a n instance, if for promotion to a post in the scale of Rs.5,900-6,700, it is pre scribed in the Rules & Regulations that officers with 8 years’ service in the sc ale of Rs.3,700-5,000 or those with 17 years service in Group ’A’ including four years service in the scale of Rs.3,700-5,000 are eligible, the DPC may consider the service record of all officers with particular reference to the ACRs for 8 years (including Annual Confidential Report for service in the lower grade, if n ecessary.

(cid:29) ' Where one or more CRs have not been written for any reason during the re levant period, the DPC should consider the CRs of the years preceding the period in question and if in any case even these are not available, the DPC should tak e the CRs of the lower grade into account to complete the number of CRs required to be considered as per (b) above. If this is also not possible, all the availa ble CRs should be taken into account. (d) Where an officer is officiating in the next higher grade and has earned CRs in that grade, his CRs in that grade may be considered by the DPC in order t o assess his work, conduct and performance, but no extra weightage may be given merely on the ground that he has been officiating in the higher grade. (e) The DPC should not be guided merely by the overall grading, if any, that may be recorded in the CRs but should make its own assessment on the basis of t he entries in the CRs, because it has been noticed that sometimes the overall gr ading in a CR may be inconsistent with the grading under various parameters or a ttributes.

(f) If the Reviewing Authority or the Accepting Authority, as the case may b e, has overruled the Reporting Officer or the Reviewing Authority, as the case m ay be, the remarks of the latter authority should be taken as the final remarks for the purposes of assessment, provided it is apparent from the relevant entrie s that the higher authority has come to a different assessment consciously after due application of mind. If the remarks of the Reporting Officer, Reviewing Aut hority and Accepting Authority are complementary to each other and one does not have the effect of overruling the other, then the remarks should be read togethe r and the final assessment made by the DPC. (cid:29) [22] For the foregoing reasons, the impugned order dated 26.04.2001 i s hereby set aside and the respondent authority is directed to take up steps for review of the proceedings of the DPC held on 13.03.2001 and 16.04.2011 for the post of Director.