Shahid Ali Khan v. State of U.P.) as contained in Annexure No on 30 May 2025 — Writ Petition No. 8949 of 2021

Judgment

)

1. Heard learned counsel for the petitioner and learned counsel for the State. 2

2. These writ petitions are preferred by the petitioner for quashing the judgments and orders passed by the U.P. State Public Services Tribunal in different claim petitions.

3. The Writ Petition No. 8949 of 2021 is filed by the petitioner praying as under:-

"(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned judgment and order dated 20.05.2019 corrected on 17.11.2020 and issued on 23.11.2020 passed by the learned State Public Services Tribunal, Indira Bhawan, Lucknow in Claim petition No. 1092 of 2018 (Shahid Ali Khan vs. State of U.P.) as contained in Annexure No.1 to the writ petition and also expunge /quash the remark / grading i.e. 'Atiuttam' awarded by Reviewing Authority /Accepting Authority to the petitioner in his Annual Confidential Report for the year 2008-09 of the period 01.04.2008 to 31.03.2009 and consequently declare / hold that Annual Confidential Report / Grading of the petitioner for the period 01.04.2008 to 31.03.2009 to be treated as 'Outstanding' (as recorded by Reporting Authority) for grant of all service benefits to the petitioner as contained in Annexure No.1 to the claim petition, which is annexed as Annexure No.3 to the writ petition. (ii) Issue a writ, order or direction in the nature of mandamus directing the respondents to consider and decide the representation submitted by the petitioner dated 08.03.2018 against the impugned downgraded entry as contained in Annexure No.5 to the Claim petition which is annexed as Annexure No.3 to the writ petition." The Writ Petition No. 6884 of 2020 is filed by the petitioner praying as under:- "(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned judgment and order dated 20.05.2019 passed by the Learned State Public Services Tribunal, Indira Bhawan, Lucknow in Claim petition No. 1091 of 2018 (Shahid Ali Khan vs. State of U.P.) as contained in Annexure No.1 to the writ petition 3 and also expunge/quash the remark / grading ie. 'Uttam' awarded by Reviewing Authority to the petitioner in his Annual Confidential Report for the year 2010-11 of the period 18.05.2010 to 16.09.2010 and 01.04.2010 to 16.09.2010 and consequently declare / hold that Annual Confidential Report / Grading of the petitioner for the period 18.05.2010 to 16.09.2010 and 01.04.2010 to 16.09.2010 shall be treated as 'Outstanding' (as recorded by Reporting Authority) for grant of all service benefits to the petitioner as contained in Annexure No.1 to the claim petition, which is annexed as Annexure No.2 to the writ petition. (ii) Issue a writ, order or direction in the nature of mandamus directing the respondents that while considering the case of the petitioner for promotion to the post of Chief Engineer Level-II, the Annual Confidential Report/Grading of the petitioner for the period 18.05.2010 to 16.09.2010 and 01.04.2010 to 16.09.2010 may be treated as 'Outstanding' (as recorded by the reporting authority)." The Writ Petition No. 6881 of 2020 is filed by the petitioner praying as under:- "(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned judgment and order dated 20.05.2019 passed by the Learned State Public Services Tribunal, Indira Bhawan, Lucknow in Claim petition No. 1090 of 2018 (Shahid Ali Khan vs. State of U.P.) as contained in Annexure No.1 to the writ petition and also expunge/quash the remark / grading le 'Uttam awarded by Reviewing Authority to the petitioner in his Annual Confidential Report for the period w.e.f. 01.04.2009 to 31.03.2010 and consequently declare /hold that Annual Confidential Report / Grading of the petitioner for the period w.e.f. 01.04.2009 to 31.03.2010 shall be treated as 'Ati-Uttam' (as recorded by Reporting Authority) for grant of all service benefits to the petitioner as contained in Annexure No.1 to the claim petition, which is annexed as Annexure No.2 to the writ petition. (i) Issue a writ, order or direction in the nature of mandamus directing the respondents that while 4 considering the case of the petitioner for promotion to the post of Chief Engineer Level-II, the Annual Confidential Report/Grading of the petitioner for the period w.e.f. 01.04.2009 to 31.03.2010 may be treated as 'Ati-Uttam' (as recorded by the reporting authority)."

4. In all these writ petitions, common issue is involved that the Annual Entry downgraded by the Reviewing as well as the Accepting Authority has not been communicated to the employee. With the consent of learned counsel for both the parties, all the writ petitions are being decided by a common judgment.

5. Learned counsel for the petitioner has submitted that on being selected by U.P. Public Service Commission in the year 1985, the petitioner was initially appointed as Assistant Engineer and he joined his duties on 27.12.1989. During the course of the petitioner's service, neither any adverse entry had been made in his character role nor any order of punishment had ever been passed. It has further been submitted that as the petitioner had an unblemished service record, he was promoted to the post of Executive Engineer in May, 2012. Thereafter, he was promoted to the post of Superintendent Engineer vide order of promotion dated

15.01.2016 on the basis of seniority subject to satisfactory service. Submission of learned counsel for the petitioner was that though, the petitioner was entitled for promotion to the post of Chief Engineer, Level-II on the basis of merit, he was suspended and on being inquired about the reason, it came into his knowledge that his annual entries had been downgraded, however, no written information was ever provided to him. The petitioner, thus, moved an application under Right to Information Act, 2005 to obtain the copies of downgraded entries, after getting the same, he moved representations against the downgraded entries. 5 It has been submitted that on the application moved by the petitioner under Right to Information Act, vide letter dated

31.10.2017, he was provided the Annual Confidential Report for the year 2008-09 by the authorities, which reveals that the Reporting Officer had awarded him the grade 'Utkrisht' (Outstanding) for the period with effect from 28.05.2008 to

31.03.2009 on the basis of supervision of his work. However, the Reviewing Authority as well as the Accepting Authority downgraded the aforesaid grading of the Reporting Authority from 'Utkrisht' to very good i.e. 'Ati-Uttam' for the aforesaid period without giving any reason.

6. The relevant portion of aforesaid downgraded entry with regard to the year 2008-09, for the period from 28.05.2008 to

31.03.2009 is as under:- 6

7. Learned counsel for the petitioner has further submitted that the Annual Confidential Report of the petitioner for the year 2009- 10 reveals that the petitioner was awarded 'Ati-Uttam' grading by the Reporting Authority for the period with regard to 01.04.2009 to

31.03.2010. However, the Reviewing Authority downgraded the same to the grade 'Uttam' for the said period.

8. The relevant portion as regards the downgraded entry for the period from 01.04.2009 to 31.03.2010 is as under:- 7

9. Submission of learned counsel for the petitioner was that the Annual Confidential Report of the petitioner for the year 2010- 2011, with regard to 01.04.2010 to 16.09.2010, which was provided to the petitioner under Right to Information Act, reveals that although the Reporting Authority awarded him the grading 'Utkrisht' for the period 01.04.2010 to 16.09.2010, the Reviewing Authority downgraded the same to the grade 'Ati-Uttam' without mentioning any reason and similarly the Accepting Authority also accepted the said grading, as given by the Reviewing Authority.

10. The relevant portion of the downgraded entry for the period from 01.04.2010 to 16.09.2010 is as under:- 8

11. Learned counsel for the petitioner has submitted that it is undisputed fact that the entries awarded by the Reporting Officer and downgraded by the Reviewing Officer as well as the Accepting Officer, were never communicated to the petitioner, due to said entries, he was deprived of further promotion to the post of Chief Engineer, Level-II. Feeling aggrieved with all these downgraded entries, the petitioner preferred Claim Petitions Nos. 1092 of 2018, 1091 of 2018 and 1090 of 2018 with the request that the entries of the Reporting Officer may be read for giving service benefits because the Reviewing as well as the Accepting Officer downgraded the same without giving any reason. However, the aforementioned claim petitions were rejected by learned Tribunal without considering the law laid down by Hon'ble Supreme Court in the case of Dev Dutt Vs. Union of India and Ors. reported in (2008) 8 SCC 725. It has next been submitted that the State Government issued Government Order dated 01.02.2013 which provides that all the entries awarded to the government employee shall be communicated to them in writing and the employee concerned shall be given an opportunity to make a representation. Another Government Order dated 29.01.2014 was also issued, wherein the decision of the State Government to the effect that the Government Order dated 01.02.2013 shall be applicable from the years 2012-

13. But, question of applicability of Government Order dated

01.02.2013 is already decided by this Court and held that it will be applicable retrospectively. In support of his submissions, learned counsel for the petitioner has placed reliance upon the decision of Coordinate Bench of this Court in the case of Santosh Kumar Agnihotri Vs. 9 State of U.P. and Ors. reported in [2018(9) ADJ 162 (DB)(LB)], in which, it is observed that Hon'ble Supreme Court in the case of Dev Dutt Vs. Union of India and Others (supra) held that fairness and transparency in public administration requires that all the entries (whether poor, fair, average, good or very good) in the Annual Confidential Report of a public servant, whether in civil, judicial, police or any other State service (except the military), must be communicated to him within a reasonable period so that he can make a representation for its upgradation. It is also opined therein that it would be correct legal position even though there may be no Rule/G.O. requiring communication of the entry, or even if there is a Rule/G.O. prohibiting it, because the principle of non-arbitrariness in the State action as envisaged by Article 14 of the Constitution in our opinion will override all rules or Government orders. It is also observed in the said order that in such circumstances, whether or not the Government Orders dated

01.02.2013 and 29.01.2014 were in existence, of the entries were to be communicated to the petitioner and any representation made by him for upgradation of such entries are thus, to be considered by authorities concerned irrespective of the facts as to whether the entry pertained to the years prior to the year 2012-13; the mandate of Hon'ble Supreme Court is unambiguous and clear and hence the stand taken by the learned Additional Chief Standing Counsel representing the State-respondents based on the Government Orders dated 29.01.2014 is, thus, highly misconceived. Learned counsel for the petitioner has vehemently submitted that as the orders passed by the U.P. State Public Services Tribunal in the aforesaid claim petitions are contrary to the law laid down by Hon'ble Supreme Court in the case of Dev Dutt Vs. Union of India and Others (supra), therefore, all the writ petitions are liable 10 to the allowed by setting aside the judgments passed by learned Tribunal.

12. Learned Standing Counsel, while opposing the prayer of the petitioner, has submitted that there is no illegality in the orders passed by learned State Public Services Tribunal, as the representations were not given by the petitioner within time. However, he has not disputed the fact that downgraded entries for the relevant period, as discussed above, were never communicated to the petitioner, and the petitioner obtained all these details after moving an application under Right to Information Act. Learned Standing Counsel has also not disputed on the legal verdict of Hon'ble Supreme Court in the case of Dev Dutt Vs. Union of India and Others (supra) as well as on the legal verdict of Coordinate Bench of this Court in the case of Santosh Kumar Agnihotri Vs. State of U.P. and Others (supra).

13. We have considered the submissions of learned counsel for the parties and gone through the record of all writ petitions, counter affidavit, rejoinder affidavit, the impugned order as well as other relevant documents.

14. The genesis of the matter in all these writ petitions is that the entries for the period from 28.05.2008 to 31.03.2009, from

01.04.2009 to 31.03.2010 and from 01.04.2010 to 16.09.2010 were downgraded by the Reviewing as well as the Accepting Authorities without mentioning any reason, and these entries were never communicated to the petitioner. Apparently, the fact of downgrading entries came to the notice of the petitioner, after he was deprived from the promotion to the post of Chief Engineer, Level-II. Feeling aggrieved, the petitioner had preferred a 11 representation dated 08.03.2018 before the competent authority, but no action was taken on the representation, thereafter, he preferred three different claim petitions on the ground that his annual entries were downgraded by the Reviewing Authority as well as the Accepting Authority without mentioning any reason and the same were also not communicated to him. Though, it was mandatory on the part of the respondent-officers in terms of the law laid down by Hon'ble Supreme Court in the case of Dev Dutt Vs. Union of India and Others (supra), however, the Tribunal rejected the claim of the petitioner with the observation that the representation was not given by the petitioner against the downgrading of the annual entries within time. Evidently, the Tribunal failed to consider the fact that the entries were communicated to the petitioner vide letter dated

31.10.2017 by the competent authority under Right to Information Act, after which, he immediately preferred representation dated

08.03.2018. It is also undisputed fact that the downgraded entries for the period, as discussed above, were never communicated to the petitioner. Indisputably, the State Government has also issued a Government order dated 01.02.2013, which provides that all the entries awarded to a Government employee shall be communicated to him in writing and the employee concerned shall be given an opportunity to make a representation for upgradation of such entries. Thereafter, subsequent order dated 29.01.2014 was also issued, wherein the decision of the State Government to the effect that the Government Order dated 01.02.2013 shall be applicable for the years 2012-13 and for subsequent years only, has been embodied. 12 The contents of the Government Order dated 29.01.2014 were considered by this Court in the case of Santosh Kumar Agnihotri Vs. State of U.P. and Others (supra). The relevant part of the judgement of Coordinate Bench of this Court passed in the case of Santosh Kumar Agnihotri Vs. State of U.P. and others (supra) is being reproduced as under:-

20. Now coming to the other issue, which as observed above, has emerged for our consideration, we need to refer to the judgment of Hon'ble Supreme Court in the case of Dev Dutt v. Union of India and others (supra). Hon'ble Supreme Court in the said case has clearly held that fairness and transparency in public administration requires that all the entries (whether poor, fair, average, good or very good) in the Annual Confidential Report must be communicated to the officer so that he can make a representation for its upgradation. Para 36 of the judgment in the case of Dev Dutt v. Union of India and others (supra) is extracted hereunder: "36. In the present case, we are developing the principles of natural justice by holding that fairness and transparency in public administration requires that all entries (whether poor, fair, average, good or very good) in the Annual Confidential Report of a public servant, whether in civil, judicial, police or any other State service (except the military), must be communicated to him within a reasonable period so that he can make a representation for its upgradation. This in our opinion is the correct legal position even though there may be no Rule/G.O. requiring communication of the entry, or even if there is a Rule/G.O. prohibiting it, because the principle of non- arbitrariness in State action as envisaged by Article 14 of the Constitution in our opinion requires such communication. Article 14 will override all rules or Government orders."

21. The law laid down by Hon'ble Supreme Court in the case of Dev Dutt v. Union of India and others (supra) has been re- affirmed by Hon'ble Supreme Court in the case of Sukhdev Singh v. Union of India, (2013) 9 SCC 566. The issue relating to opportunity of representation for upgradation of entries came up for consideration before a Division Bench of this Court in a bunch of writ petitions, leading Writ Petition being Writ Petition No. 479 (S/B) of 2010, State of U.P. and another v. Dev Raj Vishwakarma and another and the division bench in the said case vide its judgment and order dated 5.12.2011 directed the Chief 13 Secretary of the State of U.P to issue appropriate Government Order/Circular for communication of all the entries to all the State employee as per the dictum of Hon'ble Supreme Court as laid down in the case of Dev Dutt v. Union of India and others (supra), with a further provision for making representation to the higher authorities. In compliance of the said order dated 5.12.2011, the State Government has issued a Government Order dated 1.2.2013 which provides that all the entries awarded to a Government employee shall be communicated to him in writing and the employee concerned shall be given an opportunity to make a representation for upgradation of such entries. Subsequently, another Government Order was issued on 29.1.2014 wherein the decision of the State Government to the effect that the Government Order dated 1.2.2013 shall be applicable for the years 2012-13 and for subsequent years only, has been embodied.

22. Based on the said Government Order dated 29.1.2014, it has vehemently been argued by the learned Additional Chief Standing Counsel appearing for the State-respondents that representations made by the petitioner for upgradation of entries pertaining to the years prior to 2012-13 cannot be considered and accordingly any prayer made by the petitioner for disposal of representations before convening the Departmental Promotion Committee for upgradation of entries awarded to him prior to 2012-13 cannot be granted.

23. Having considered the aforesaid argument of learned Additional Chief Standing Counsel opposing the petition, what we find is that the Government Order dated 29.1.2014 actually runs under the teet teeth of the mandate of Hon'ble Supreme Court in the case of Dev Dutt v. Union of India and others (supra). In paragraph 36 of the judgment in the case of Dev Dutt v. Union of India and others (supra), it has been mandated that all the entries in the Annual Confidential Report of a public servant must be communicated to him so that he can make a representation for upgradation. Hon'ble Supreme Court further proceeds to observe that communication of all entries needs to be done to the public servant even though there may be no rule/Government Order requiring communication of the entry, or even if there is a rule/Government Order prohibiting it, because the principle of non-arbitrariness in State action as envisaged by Article 14 of the Constitution of India will override all rules or Government Orders. 14

24. In view of what has been held by Hon'ble Supreme Court in the case of Dev Dutt v. Union of India and others (supra), whether or not the Government Orders dated 1.2.2013 and 29.1.2014 were in existence, all the entries were to be communicated to the petitioner and any representation made by him for upgradation of such entries are thus, to be considered by the authorities concerned irrespective of the fact as to whether the entry pertained to the years prior to the year 2012-13. The mandate of Hon'ble Supreme Court is unambiguous and clear and hence the stand taken by the learned Additional Chief Standing Counsel representing the State-respondents based on the Government Order dated 29.1.2014 is, thus, highly misconceived."

15. For the reasons discussed above, all the writ petitions are allowed. The order dated 20.05.2019 passed by the State Public Services Tribunal in Claim Petition No.1091 of 2018 against which Writ-A No.6884/2020 is preferred, the order dated

20.05.2019 passed by the State Public Services Tribunal in Claim Petition No.1090 of 2018 against which Writ-A No.6881/2020 is preferred, and the order dated 20.05.2019 corrected on 17.11.2020 and issued on 23.11.2020 passed by the State Public Services Tribunal in Claim Petition No.1092 of 2018 against which Writ-A No.8949/2021 is preferred, are hereby set aside.

16. Let the grade given by the Reporting Officer to the petitioner for the period from 28.05.2008 to 31.03.2009, from

01.04.2009 to 31.03.2010 and from 01.04.2010 to 16.09.2010 be treated as final one.

17. The respondent- Engineer-in-Chief, Irrigation and Water Resources Department, U.P., Lucknow is directed to consider the case of the petitioner as regards his promotion to the post of Chief Engineer, Level-II in accordance with law. Order Date :- 30.05.2025 Arpan ARPAN High Court of Judicature at Allahabad, Lucknow Bench