SUSHEEL PATIL v. INDIAN RAILWAY CATERING AND TOURISM CORPORATION LTD & ORS.

Judgment

1. Time and again, the Honourable Supreme Court of India, in its various authoritative pronouncements, held that delay in communicating the Annual Confidential Report (ACR) [now termed as the Annual Performance Assessment Report (APAR)] and/or non-communication of the ACR/APAR to an C/SCA/13473/2013 CAV JUDGMENT DATED: 05/01/2026 employee by the State and its instrumentalities would result into the violation of the principles of natural justice with regard to the career advancement of the employee, despite such law, the Respondent herein, being an arm of the Union of India, apparently has not followed such dictum, which resulted in the denial of promotion to the petitioner.

2. The present petition is filed under Articles 14, 16 and 226 of the Constitution of India, seeking the following reliefs: “A) Your Lordships may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction, declaring the requirement of benchmark of 21 out of 25 in the last 5 years confidential reports for promotion from E-3 to E-4 grade, as stipulated in the IRCTC Promotion Policy, 2012, as unreasonable, arbitrary and discriminatory and thus violative of Articles 14 and 16 of the Constitution and striking down the same; B) Your Lordships may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction, declaring consideration, by the respondent authorities, of annual Performance Appraisal Reports with rating below the benchmark for promotion without prior communication of the APARs to deny the petitioner of his right to be considered for promotion as contrary to the law laid down by the Hon'ble Supreme Court of India, contrary to the principles of natural justice, arbitrary and unfair and thus violative of Articles 14 and 16 of the constitution and quashing C/SCA/13473/2013 CAV JUDGMENT DATED: 05/01/2026 and setting aside the same; C) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction directing the respondent authorities to consider the petitioner for being promoted from E-3 to E-4 grade in accordance with the provisions contained in the IRCTC Promotion Rules, 2007; D) Pending admission and final hearing of this petition, Your Lordships may be pleased to restrain the respondent authorities from making any promotion from E-3 to E-4 grade; and E) Your Lordships may be pleased to pass any other and/or further order, as deemed fit, in the interest of justice.”

3. THE SHORT FACTS, AS PER THE CASE OF THE PETITIONER, READ THUS:

3.1. The petitioner was appointed in Grade E-2 of Junior Management in the respondent-Indian Railway Catering and Tourism Corporation Ltd. (hereinafter referred to as “IRCTC”) in the year 2005. Later on, as per the prevailing IRCTC Promotion Policy and Rules, 2007 (hereinafter referred to as "the Rules, 2007") of the respondent, the petitioner was promoted to Grade E-3 on 9th March 2009. At that point of time, as per the said rules, minimum 3 years of regular service in the lower grade requires to get promotion to the higher C/SCA/13473/2013 CAV JUDGMENT DATED: 05/01/2026 grade and only the suitability of the candidate judged from his performance and the confidential reports but there was no benchmark set with regard to the performance and the confidential reports.

3.2. The petitioner, having completed 3 years of service in the said grade, was eligible to be considered for further promotion to Grade E-4 i.e. Middle Management. At that time, in the year 2012, the aforesaid Rules, 2007 came to be substituted by the revised IRCTC Promotion Policy and Rules, 2012 (hereinafter referred to as "the Rules, 2012"), which came into force with effect from 1st September 2012.

3.3. As per the said rules, 2012, the benchmark has been introduced to get promotion from Grade E-3 to E-4 apart from other Grades. The benchmark fixed 21 out of 25 (last 5 years’ ACRs) to consider for said promotion. The points for each APAR, as per the said rules, are as follows: CLASSIFICATION BENCHMARK SCORE Outstanding Very Good Good 5 4 3 C/SCA/13473/2013 CAV JUDGMENT DATED: 05/01/2026 Average Below Average 2 1

3.4. Prior to the aforesaid Rules, 2012, to get promotion from the Grade E-2 to E-5, there was no benchmark fixed by the respondent as not having been found in its Rules, 2007. As stated above, as per the Rules, 2007, minimum 3 years of regular service in the immediate lower grade shall be required for a person to be eligible to get promotion to the next higher grade. Whereas, as per the Rules, 2012, the respondent has

introduced for first time a benchmark to get it eligible for promotion from Grade E-2 to E-5, apart from minimum 3 years of regular service in the immediate lower grade as aforesaid.

3.5. It is remained undisputed fact amongst the parties that the respondent had not served each year's APAR to the petitioner at regular intervals in the last 5 years prior to 2013; rather, the pleading suggests that on being sought for by the petitioner, the respondent had communicated the APARs for the period of 2008-09, 2009-10, 2010-11 and 2011–12 in one lot to the petitioner on 2nd April 2013. The petitioner’s APARs for the years 2008–09 to 2011–12 were 'Very Good', 'Good', C/SCA/13473/2013 CAV JUDGMENT DATED: 05/01/2026 'Average/Fair', and 'Average', respectively; since the cumulative score did not reach the benchmark of 21 fixed under the Rules, 2012, for promotion from Grade E-3 to E-4, the Petitioner was deemed ineligible for promotion.

3.6. The petitioner appears to have submitted a representation on 22nd April 2013 for the upgradation of his APAR, wherein also, he complained of not getting the APAR every year, thereby, not have had a chance to improve his efficiency every year. Such representation was rejected by the respondent on 20th September 2013 and the Departmental Promotional Committee (DPC) met on the same date, had not considered the case of the petitioner for promotion to Grade E-4, as not met with the said benchmark.

3.7. Being aggrieved by the decision of the respondent in not considering the petitioner for promotion from Grade E-3 to E- 4, he has approached this Court by way of the present petition.

4. SUBMISSIONS OF THE PETITIONER:

4.1. Mr. Gautam Joshi, learned Senior Counsel with Mr. Aaditya Bhatt, learned advocate for the petitioner, would submit that non-communication of the APAR by the respondent every year C/SCA/13473/2013 CAV JUDGMENT DATED: 05/01/2026 would be violative of the principles of natural justice and also violative of Articles 14 and 16 of the Constitution of India. It is submitted that due to late communication of the APARs, that too by providing them in one lot of all previous relevant years’ APAR to the petitioner, is nothing but an arbitrary action on the part of the respondent, which requires to be quashed and set aside.

4.2. Mr. Joshi, learned Senior Counsel, would further submit that as per the settled legal position of law and as per the Office Memorandum dated 14th May 2009 issued by the Department of Personnel and Training (DOPT), Government of India, binding to the respondent, it was incumbent upon the respondent to communicate the APAR regularly every year to the petitioner, thereby, the petitioner would have a chance to improve his working year on year, and could achieve higher APAR in the next year. It is submitted that due to non- communication of the APAR every year by the respondent it resulted in a situation, whereby, the petitioner could not have an opportunity to improve his efficiency to achieve higher excellence in the service.

4.3. Mr. Joshi, learned Senior Counsel, would further submit that C/SCA/13473/2013 CAV JUDGMENT DATED: 05/01/2026 as per various decisions of the Honourable Apex Court, it was a constitutional obligation upon the respondent to serve the APAR every year to the petitioner and having not done so, it violated the principles of natural justice. It is submitted that due to the late receipt of the last few years’ APARs in one lot, the petitioner could not effectively represent and had no chance to get himself improved to achieve the highest APAR year after year.

4.4. Mr. Joshi, learned Senior Counsel, would further submit that the communication of the APAR every year to the petitioner is having a laudable object, thereby, the petitioner not only gets a chance to represent if dissatisfied with the APAR, but on getting such remarks from his superior, also have a chance to improve himself, which ultimately benefits him to get promotion to a higher grade.

4.5. Mr. Joshi, learned Senior Counsel, would further submit that as per Rules, 2007, there was no benchmark set out by the respondent to get promotion to a higher grade by the petitioner, inasmuch as, minimum 3 years of regular service in the immediate lower grade shall be required for promotion to the next higher grade. Whereas, due to the introduction of C/SCA/13473/2013 CAV JUDGMENT DATED: 05/01/2026 Rules, 2012, the respondent for the first time introduced the benchmark, whereby, the petitioner needs to achieve 21 points out of 25, to be counted from his last 5 years' APARs/ACRs. It is submitted that when the respondent for the first time introduced the benchmark in the year 2012, and having not communicated the APARs every year in time, such benchmark could have been considered prospectively rather than retrospectively, inasmuch as, it could have been applied after 5 years of the introduction of Rules, 2012, subject to the respondent regularly communicating the APARs to its employees.

4.6. Mr. Joshi, learned Senior Counsel, would further submit that the respondent communicating all APARs in one lot is nothing but an empty formality; rather, it is illusory to send all APARs in one lot, just to overcome the dictum of the Hon’ble Apex Court.

4.7. Mr. Joshi, learned Senior Counsel, would submit that after the year 2011–12, when the respondent communicated the APAR every year to the petitioner and as such, APARs of the petitioner from 2012–13 to 2021–22 would suggest that his performance was either 'Very Good' or 'Outstanding', as the C/SCA/13473/2013 CAV JUDGMENT DATED: 05/01/2026 case may be. Had all required APARs been communicated by the respondent to the petitioner in time prior to 2012, considering his service record and performance after 2012, he would have definitely secured at least minimum of the benchmark, thereby got promoted to Grade E-4 from Grade E-

4.8. Mr. Joshi, learned Senior Counsel, would lastly submit that by no stretch of imagination, the respondent can be allowed to say that it had communicated all APARs for the period 2008–09 to 2011–12 within reasonable time. It is submitted that there is no explanation worth name forthcoming from the side of the respondent as to why it had not communicated the relevant APARs every year to the petitioner. It is further submitted that due to the negligent act on the part of the respondent, the petitioner is the sufferer who was deprived from getting promotion at the relevant point of time, when the DPC met on 20th September 2013. It is further submitted that when the respondent is at fault of not communicating the APARs every year, the benchmark as set out in Rules, 2012, cannot be pressed into service; rather, the case of the petitioner requires to be considered for promotion to Grade E-4 from Grade E-3 C/SCA/13473/2013 CAV JUDGMENT DATED: 05/01/2026 without applying the said benchmark.

4.9. To buttress his argument, Mr. Joshi, learned Senior Counsel would rely upon the following decisions: (i) Dev Dutt V/s. Union of India reported in (2008) 8 SCC 725; (ii) Abhijit Ghosh Dastidar vs. Union of India and others reported in (2009) 16 SCC 146; (iii) Sukhdev Singh vs. Union of India and others reported in (2013) 9 SCC 566; (iv) Manoj Sitaram Lokhande vs. State of Gujarat, 2016 (0) AIJEL-HC 236565.

4.10. Making the above submissions, Mr. Joshi, learned Senior Counsel would request this Court to allow the present writ petition. SUBMISSIONS OF RESPONDENTS:

5. Per contra, Mr. Sudhir Mehta, learned advocate for the respondents, would vehemently oppose the present petition as follows:

5.1. There is no merit in the claim of the petitioner that he was not communicated with the APARs by the respondent. It is submitted that prior to the promotional exercise undertaken by C/SCA/13473/2013 CAV JUDGMENT DATED: 05/01/2026 the respondent in the year 2013, all previous years’ APARs were communicated to the petitioner for the period 2008–09 to 2011–12 on 2nd April 2013. It is further submitted that for reasons best known to the petitioner, no representation was made by the petitioner against the APARs for the periods of 2008–09 and 2009–10. The representation for the period 2010– 11 and 2011–12 was duly considered by the respondent and the same was rejected on 20th September 2013 and such decision was communicated to the petitioner, which is not under challenge.

5.2. The DPC, having met on 20th September 2013, found that the petitioner had not secured the minimum benchmark to get it eligible to be promoted from Grade E-3 to E-4, thereby, was not granted promotion to the petitioner. It is a settled legal position of law that the right to get promotion is not a fundamental right; rather the right to be considered is only fundamental right.

5.3. The respondent had followed the principles of natural justice by communicating all previous years’ APARs to the petitioner, thereby, he could submit his representation. The representation of the petitioner was duly considered by the DPC, but having C/SCA/13473/2013 CAV JUDGMENT DATED: 05/01/2026 not found any substance, it was rejected. The petitioner, having not cleared the minimum benchmark, i.e., 21 points, as per Rules, 2012, was not granted promotion.

5.4. The decisions of the Honourable Apex Court and this Court relied upon by the petitioner would not be applicable to the facts of the present case, inasmuch as, in none of the decisions of the Honourable Apex Court, any time limit has been set out, whereby, the respondent was under a legal obligation to communicate the APAR within stipulated time. The ratio of the cited decisions is also not applicable to the facts of the present case, as the petitioner was duly communicated with all APARs. The petitioner chose to make representation only for the period 2010–2011 and 2011–12; rather having accepted the APARs for the period of 2008–09 and 2009–10, recorded by the Reviewing Authority, later on cannot allow to complain for late communication of APARs.

5.5. It is also not correct as submitted by the petitioner that his case requires to be considered for promotion as per Rules, 2007 instead of Rules, 2012. The respondent is well within its rights to change promotional rules and is also entitled to introduce a benchmark which was not fixed in its earlier promotion rules. C/SCA/13473/2013 CAV JUDGMENT DATED: 05/01/2026 It is also settled legal position of law that when promotional exercise is undertaken by employer, the rules prevailing at that point of time would be applicable and not the rules prevailing when the promotional post felt vacant.

5.6. The petitioner was offered to participate in the promotional exercise undertaken by respondent in the year 2019, but he chose to stay away from such exercise, citing reasons of the pendency of this petition. The petitioner cannot be allowed to take undue advantage of mere delay in communicating APARs, as it would be a procedural irregularity and not any illegality. The petitioner is unable to show any real prejudice caused to him by such late communication; rather, the self- appraisal note filled in by the petitioner himself, which was submitted to the respondent would indicate that the petitioner was well aware about remarks of his APARs every year.

5.7. Mr. Mehta, learned advocate for the respondents, would rely upon the following decision: (i) State of Himachal Pradesh and others V/s. Raj Kumar and other reported in (2023) 3 SCC 773. (ii) Hardev Singh V/s. Union of India and others reported in (2011) 10 SCC 121. C/SCA/13473/2013 CAV JUDGMENT DATED: 05/01/2026

5.8. Making the above submissions, Mr. Mehta, learned advocate for the respondents, would request this Court to reject the present writ petition.

6. No other or further submissions are being made by any of the learned advocates appearing for the parties. POINT FOR DETERMINATION:

7. Having heard learned advocates of both sides, and having perused the pleadings of the parties, following issue germen for my consideration. (i) Whether, in the facts and circumstances of the case, the inordinate delay by the Respondent in communicating the relevant years' APARs to the Petitioner, and the sending of such APARs in one lot, would amount to unfair action violating the principles of natural justice, thereby causing prejudice to the Petitioner’s eligibility for promotion from Grade E-3 to E-4 ? ANALYSIS

8. The facts which are observed hereinabove are not in dispute. The promotion Rules, 2007 of the respondent, whereby, the petitioner secured his first promotion from Grade E-2 to E-3 - C/SCA/13473/2013 CAV JUDGMENT DATED: 05/01/2026 Junior Management on the basis of serving minimum 3 years in Grade E-2. There was no benchmark fixed in the Rules, 2007 to get higher promotion from Grade E-2 to E-8. The said position was materially changed by the respondent in the year 2012 when respondent for the first time introduced the benchmarks in the Rules, 2012, which came into force with effect from 1st September 2012. As per the Rules, 2012, apart from minimum 3 years of service in a particular grade/post, the employee concerned needs to secure the benchmark as fixed in the Rule 11 of the Rules, 2012. The counting of the benchmark is based on the points for each CR’s-APAR’s of the last 5 years.

8.1. The relevant Rules 11 and 18 of the Rules, 2012, read as under: “(11). PROMOTION FROM E2 TO E5 LEVEL

11.1 Promotion from E-2 to E-5 level will be made on the basis of performance and confidential reports.

11.2 A person will be eligible for being considered for promotion to the next higher grade on completion of 3 years regular service.

11.3 A selection committee comprising of GGM level officers will be nominated out of which at least one officer should be from HR department and one from the concerned department. The approving authority is MD. C/SCA/13473/2013 CAV JUDGMENT DATED: 05/01/2026 For E-2 to E3 the benchmark for promotion with regard to record of service is as follows: Year in E2 Benchmark 3 4 5 12 15 17 For E-3 to E-4 the benchmark is 21 out of 25 (last 5 years CR’s) For E-4 to E-5 the benchmark will be 13 out of 15 (last 3 years CR’s) (18) Benchmark – for the purpose of benchmark, the points for each CR’s will be given as follows: a) Outstanding-5 b) Very Good-4 c) Good-3 d) Average-2 e) and below Average-1” (emphasis supplied) Undisputedly, the petitioner had not secured minimum benchmark of 21 points as cumulative score of his last 5 years' ACRs - APARs prior to 2013 was less than 21, i.e., the benchmark fixed by the respondent as per said the Rules, 2012, C/SCA/13473/2013 CAV JUDGMENT DATED: 05/01/2026 to get it eligible for promotion from Grade E-3 to E-4. So, his case was not considered by the DPC for promotion.

8.2. As observed above, prior to the DPC meeting, on the request made by the petitioner, previous years APARs for the period of 2008–09 to 2011–12 were provided by the respondent to the petitioner, albeit in one lot. The petitioner made representation to respondent for entry made in the APARs for year 2010-11 and 2011-12, but said representation was rejected.

8.3. It also requires to take note of the undisputed fact that as per the Office Memorandum dated 14th May 2009 issued by the Department of Personnel and Training (DOPT), Government of India, within reasonable time, respondent was supposed to communicate APAR to the petitioner. As can be seen from the pleadings of the parties, at relevant point of time, respondent had not adhered to said binding circular of the Government, inasmuch as communicated all APARs in question to the petitioner in one lot.

9. Thus, in view of the aforesaid facts and circumstances, even though the petitioner was communicated the previous years' APARs by the respondent and his representation was rejected C/SCA/13473/2013 CAV JUDGMENT DATED: 05/01/2026 prior to the DPC meeting, the question still remains to answer, as to whether it can said that the respondent observed the principles of natural justice and acted in a fair manner when it communicated all relevant previous years APARs to the petitioner in one lot.

10. To appreciate the controversy germane to the matter and to satisfactorily decide the point for determination, certain judicial precedents on the subject need to be taken into account.

10.1. In the case of Dev Dutt (supra), the Honourable Apex Court laid down the law that it was a legal obligation on the part of the State and its instrumentality to communicate all ACRs/APARs to its employee irrespective whether it adverse or not. It held that the purpose of communication of ACRs would be twofold: (i). The communication of the ACR to know about the assessment of the work and conduct by his superior, which would enable the employee to improve his work in the future, (ii). The employee would have an opportunity of making a representation against the entry made in the ACR if he feels it is unjustified, thereby, to pray for its upgradation. It has been so observed and held that the communication of C/SCA/13473/2013 CAV JUDGMENT DATED: 05/01/2026 ACRs to the employee is fairness in action on the part of the State, which is the soul of natural justice.

10.2. The relevant observations of the Honourable Apex Court in the case of Dev Dutt (supra) read thus: “12. It has been held in Maneka Gandhi v. Union of