R.K. Singh v. Central Administrative Tribunal & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 20-1-2009CORAMTHE HONOURABLE MR.JUSTICE P.K.MISRAANDTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.Nos.27045 and 27455 of 2008andM.P.No.1 of 2008WP 27045/2008:R.K.SinghChief General ManagerPostal Life InsurancePLI DirectorateNew Delhi 110 021... Petitioner vs1.Central Administrative Tribunal Rep. By its Registrar Chennai 600 104.2.Indira Krishna Kumar3.Union of India rep. By The Secretary to Government ofIndia Ministry of Communications & IT Department of Posts, Dak Bhavan, New Delhi 110 001.4.The Deputy Director General (Personnel) Ministry of Communications & IT Department of Posts, Dak Bhavan, New Delhi 110 001.5.Madhu Narayanan Member (Personnel) Postal Services Board Dak Bhavan, New Delhi 110 001.6.S.Samant Member (Development) Postal Services Board Dak Bhavan, New Delhi 110 001... Respondents https://hcservices.ecourts.gov.in/hcservices/ WP 27455/2008:1.The Union of India Rep. By its Secretary to Government Ministry of Communications and IT Department of Posts, Dak Bhavan, New Delhi 110 116.2.The Deputy Director General(Personnel) Ministry of Communications and IT Department of Posts, Dak Bhavan, New Delhi 110 116... Petitionersvs1.The Central Administrative Tribunal Madras Bench Rep. By its Registrar High Court Complex, Chennai 600 1042.Indira Krishnakumar3.Madhu Narayanan Member (Personnel) Postal Service Board Dak Bhavan, New Delhi 110 116.4.S.Samant Member (D) Postal Service Board Dak Bhavan, New Delhi 110 116.5.R.K.Singh Chief General Manager Postal Life Insurance PLI Directorate, New Delhi 110 021... Respondents WP 27045/2008 filed under Article 226 of the Constitution of Indiapraying for a writ of certiorari to call for the records relating to thelimited portion of the impugned order dated 29.10.2008 inO.A.No.431/2008 on the file of the 1st respondent herein, insofar as theconcluding portion relating to continuance of the order of status quotill review of the case of the 2nd respondent herein by the DPC, quashthe same as illegal and thereby enabling the respondents No.3 and 4 topromote the petitioner herein to the post of Member, Postal ServicesBoard, pursuant to the recommendations dated 11.3.2008 made by theDepartmental Promotion Committee convened by the UPSC for the saidpurpose.WP 27455/2008 filed under Article 226 of the Constitution of Indiapraying to issue a writ of certiorari to call for the records relatingto the order passed by the first respondent Tribunal dated 29.10.2008 inO.A.No.431 of 2008 and quash the same. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners: Mr.M.Sekar in WP 27045/2008 Mr.M.Ravindran Additional Solicitor General of India for Mr.T.S.SivagnanamSCGSCFor Respondents: Mr.Karhik Mukundan for R2in both WPs Mr.M.Sekar for R5in WP 27455/2008 Mr.M.Ravindran Additional Solicitor General of India for Mr.T.S.SivagnanamSCGSC for RR3 & 4 in WP 27045/2008COMMON ORDER(Order of the Court was made by P.K.MISRA, J.)W.P.No.27455 of 2008 has been filed by the Union of Indiachallenging the order of the Tribunal in O.A.No.431 of 2008 which wasfiled by the present respondent No.2 Indira Krishnakumar.2.The grievance of the present respondent No.2 was to the effectthat in the previous years, "very good" had been indicated in the ACR,whereas for the year 2004-2005, in the ACR it was indicated as "good"which amounted to downgrading of the ACR, and therefore, such entryshould have been treated as an adverse entry and should have beencommunicated to the respondent No.2 (applicant before the Tribunal).The further question raised was that while considering the question ofpromotion, such uncommunicated adverse entry should not have been takeninto account. The stand of the department was to the effect that theentry "good" cannot be considered as an adverse entry and therefore,there was no requirement for communicating such entry, and the DPC whichconsisted of a Member of the UPSC and the Secretary of the Department,had considered all the entries in proper perspective, and therefore, thedenial of promotion was justified.3.The Tribunal by placing reliance upon the earlier Full Benchdecision of the Tribunal as well as the decision of the Supreme Courtreported in 2008 (8) SCC 725 has allowed the Original Application anddirected the department to place the question of promotion of thepresent respondent No.2 before the DPC by ignoring the uncommunicatedentry of the year 2004-2005. Such decision of the Tribunal is inquestion at the instance of the department in the above writ petition.4.The connected writ petition in WP No.27045 of 2008 has been filedby the respondent No.5 R.K.Singh before the Tribunal. In such writpetition, the only grievance of the petitioner is that while disposingthe matter, the Tribunal should not have passed an order of status-quotill the finalisation of the matter by the review DPC. https://hcservices.ecourts.gov.in/hcservices/

5.We have heard Mr.Ravindran, learned Additional Solicitor Generalfor the petitioner in WP 27455/2008, Mr.M.Sekar, Counsel for thepetitioner in WP 27045/2008 and Mr.Karthik Mukundan for the secondrespondent in both the writ petitions. The other private party namelyrespondent No.4 S.Samant has not entered appearance in spite of serviceof notice.6.At the time of entertaining the writ petition in WP No.27455/2008,this Court had granted an order of interim stay to the following effect."In the mean time, without prejudice to the contentions of theparties, there shall be interim stay of the observation of theTribunal relating to continuance of status quo till then. Itis further made clear that any action taken by the Departmentwill be subject to the result of the writ petition."7.By virtue of such order, the writ petitioner R.K.Singh has beengiven promotion. The Counsel for the writ petitioner R.K.Singh statedthat he would have no further grievance if such interim order is allowedto continue as he has been promoted.8.The learned Additional Solicitor General on behalf of the Union ofIndia brought to our notice an earlier decision of the Supreme Courtreported in (2006) 9 SCC 69 which was subsequently followed in (2008) 9SCC 120 in support of the contention that every entry in the ACR neednot be communicated to the concerned employee more particularly when theentry was "good" which cannot be considered as an adverse entry. 9.The learned Counsel for the contesting respondent No.2 who was theapplicant before the Tribunal, on the other hand submitted that theTribunal has placed reliance upon the decision of the Supreme Court in(2008) 8 SCC 725 which is squarely applicable, and since substantialjustice has been rendered by following a decision of the Supreme Court,the order of the Tribunal does not call for any interference.10.So far as the decision of the Supreme Court in Shukla's casereported in (2006) 9 SCC 69 is concerned, the main question was relatingto the promotion of the appellant, and certain scheme was in challenge.However, incidentally, the appellant had also argued the matter relatingto communication of remarks in ACR. This aspect was considered in thefollowing manner:"29.The appellant also argued that the remarks made in the ACRwere not communicated to him. It was also urged by theappellant that this Court should direct the authorities tostreamline the whole procedure so that even remarks like "good"or "very good" made in ACRs should be made compulsorilycommunicable to the officers concerned so that an officer maynot lose his chance of empanelment at a subsequent point of hisservice. In our view, it is not our function to issue suchdirections. It is for the Government to consider how tostreamline the procedure for selection. We can only examine ifthe procedure for selection as adopted by the Government isunconstitutional or otherwise illegal or vitiated byarbitrariness and mala fides." https://hcservices.ecourts.gov.in/hcservices/

11.Subsequently, the question as to whether the downgrading of anyentry should be communicated or not was directly considered by theSupreme Court in (2008) 8 SCC 725 (Dev Dutt's case). In the saiddecision, the question raised before the Supreme Court was to thefollowing effect."6.The grievance of the appellant was that he was notcommunicated the "good" entry for the year 1993-1994. Hesubmitted that had he been communicated that entry he wouldhave had an opportunity of making a representation forupgrading that entry from "good" to "very good", and if thatrepresentation was allowed he would have also become eligiblefor promotion. Hence he submits that the rules of naturaljustice have been violated."12.The contention of the respondent No.1 in the said case before theSupreme Court was that every entry need not be communicated, and onlyadverse entry is required to be communicated, and if some entry whichwas "very good" in the previous year, is made "good" in the subsequentyear, such entry need not be communicated. Accepting the contention ofthe appellant, it was observed by the Supreme Court as follows:"9.In the present case the benchmark (i.e. the essentialrequirement) laid down by the authorities for promotion to thepost of Superintending Engineer was that the candidate shouldhave "very good" entry for the last five years. Thus in thissituation the "good" entry in fact is an adverse entry becauseit eliminates the candidate from being considered forpromotion. Thus, nomenclature is not relevant, it is theeffect which the entry is having which determines whether it isan adverse entry or not. It is thus the rigours of the entrywhich is important, not the phraseology. The grant of a "good"entry is of no satisfaction to the incumbent if it in factmakes him ineligible for promotion or has an adverse effect onhis chances.10.Hence, in our opinion, the "good" entry should have beencommunicated to the appellant so as to enable him to make arepresentation praying that the said entry for the year 1993-94should be upgraded from "good" to "very good". Of course,after considering such a representation it was open to theauthority concerned to reject the representation and confirmthe "good" entry (though of course in a fair manner), but atleast an opportunity of making such a representation shouldhave been given to the appellant, and that would only have beenpossible had the appellant been communicated the "good" entry,which was not done in this case. Hence, we are of the opinionthat the non-communication of the "good" entry was arbitraryand hence illegal, and the decisions relied upon by the learnedcounsel for the respondent are distinguishable."The Supreme Court has further observed to the following effect:"13.In our opinion, every entry (and not merely a poor oradverse entry) relating to an employee under the State or aninstrumentality of the State, whether in civil, judicial, https://hcservices.ecourts.gov.in/hcservices/ police or other service (except the military) must becommunicated to him, within a reasonable period, and it makesno difference whether there is a benchmark or not. Even ifthere is no benchmark, non-communication of an entry mayadversely affect the employee's chances of promotion (orgetting some other benefit), because when comparative merit isbeing considered for promotion (or some other benefit) a personhaving a "good" or "average" or "fair" entry certainly has lesschances of being selected than a person having a "very good" or"outstanding" entry."13.In the aforesaid decision, the Supreme Court had also referred toseveral earlier decisions including the decision reported in U.P.JALNIGAM V. PRABHAT CHANDRA JAIN ((1996) 2 SCC 363). It is of course truethat the Supreme Court had observed that the observations were onlystray observations. However, the fact remains that in effect, theSupreme Court had followed such earlier decision. The AdditionalSolicitor General however, submitted that in Dev Dutt's case, theearlier decision of the Supreme Court in Shukla's case reported in(2006) 9 SCC 69 had not been noticed. At this stage, we may point outthat the observation which was made in Shukla's case in paragraph 13 wasonly a recommendation, and it cannot be stated that any substantialprinciple of law had been laid down in the said decision. 14.Be that as it may, the aforesaid observation of the Supreme Courtin Shukla's case was construed in a subsequent decision of the SupremeCourt in (2008) 9 SCC 120 wherein a similar issue was involved. In thesaid case, there was a downgrading of the entry from "very good" to"good" for two relevant years. However, such entries had not beencommunicated. While repelling the contention of the Counsel for theappellant before the Supreme Court that such entries which had theeffect of downgrading the previous entry "very good", should have beencommunicated, the Supreme Court observed to the following effect:"17.Mr Srivastava then submitted that in the preceding yearsthe appellant had "Excellent" ratings and in the year 1995 hehad "Very Good". The rating "Good" for the year 1996-1997 wasthus a climb-down and it was incumbent upon the authorities tointimate the appellant about his ratings for the two years inquestion. Since no intimation was given to the appellant, theratings for those two years should not have been taken intoaccount and instead the ratings for the earlier years shouldhave been considered for the purpose of promotion. We areunable to accept the submission. In Satya Narain Shukla v.Union of India it was held and observed as follows: (SCC p.81, para 29)""29.The appellant also argued that the remarks made inthe ACR were not communicated to him. It was also urgedby the appellant that this Court should direct theauthorities to streamline the whole procedure so thateven remarks like "good" or "very good" made in ACRsshould be made compulsorily communicable to the officersconcerned so that an officer may not lose his chance ofempanelment at a subsequent point of his service. Inour view, it is not our function to issue such https://hcservices.ecourts.gov.in/hcservices/ directions. It is for the Government to consider how tostreamline the procedure for selection. We can onlyexamine if the procedure for selection as adopted by theGovernment is unconstitutional or otherwise illegal orvitiated by arbitrariness and mala fides.""15.In other words, paragraph 29 of the Shukla's case was relied uponby the Supreme Court to come to the conclusion that there was nonecessity to communicate the downgrading of any entry in the ACR. 16.It is to be pointed out that the above decision was rendered bythe Supreme Court on 16.9.2008. But the earlier decision of the SupremeCourt in Dev Dutt's case was not brought to the notice of the Benchwhich rendered the decision in (2008) 9 SCC 120. A perusal of thedecision in Dev Dutt's case as well as in K.M.Mishra's case makes itamply clear that there is some conflict in the opinion expressed inthese two decisions. However, Dev Dutt's case has not been noticed in(2008) 9 SCC 120. Since the Tribunal has placed reliance upon theearlier decisions of the Supreme Court in U.P. Jal Nigam's case and inDev Dutt's case, and there is a contrary decision of the Supreme Courtof equal strength wherein unfortunately the earlier decision has notbeen referred to, we do not think it would be appropriate for us tointerfere with the order passed by the Tribunal which has followed theearlier decisions of the Supreme Court. 17.In the above context, we may also point out that the learnedAdditional Solicitor General has fairly brought to our notice that byfollowing the ratio of Dev Dutt's case, Civil Appeal No.7061/2002 wasrejected by the Supreme Court by observing as follows:"Heard Mr.Amrendra Sharan, learned Additional SolicitorGeneral, Mr.K.P.Bhat, learned Additional Solicitor General,Mr.S.P.Singh, learned Senior Counsel and respondent-in-person.In view of the decision of this Court in Dev Dutt Vs. Union ofIndia, 2008 (7) SCALE 403, this appeal is dismissed."18.In the above scenario, we do not think we should interfere withthe discretionary order passed by the Tribunal. 19.The learned Additional Solicitor General has also contended thatbefore the Tribunal, a question had been raised that UPSC has not beenimpleaded as a party. In the present case, the question of promotionwas considered by the Departmental Promotion Committee whichincidentally consisted of one Member of UPSC who was the Chairman of theCommittee, and the Secretary of the department. The Department havingbeen represented, we do not think it was necessary to implead either theUPSC or its Member, more particularly in the absence of any specificallegation of factual malafides against them. Moreover, the Tribunalhas merely directed the review of the DPC which can be done on the basisof the instructions to be issued by the department. Such contentionregarding absence of necessary parties is, therefore, not acceptable. 20.In such view of the matter, we do not think it fit to interferewith the order passed by the Tribunal. Hence WP No.27455 of 2008 isdismissed. No costs. Consequently, connected MP is closed. https://hcservices.ecourts.gov.in/hcservices/

21.So far as WP No.27045 of 2008 is concerned, in view of the orderof stay passed by this Court, the promotion has already been giveneffect to, and therefore, the petitioner cannot have any furthergrievance. Such writ petition is, accordingly, disposed of. No costs. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.nsv/To:1.The Registrar Central Administrative Tribunal Chennai 600 104.2.The Secretary to Government of India Ministry of Communications & IT Department of Posts, Dak Bhavan, New Delhi 110 001.3.The Deputy Director General (Personnel) Ministry of Communications & IT Department of Posts, Dak Bhavan, New Delhi 110 001.4.The Senior Central GovernmentStanding Counsel, Madras.+ 1 CC to Mr.T.S.Sivagnanam, Advocate SR.NO.2050+ 1 CC to Mr.M.Sekar, Advocate SR.NO.2052+ 1 CC to Mr.Karhik, Advocate SR.NO.2315WP Nos.27045 and 27455of 2008RB(CO)EM/5.2.09