ANIL KUMAR versus UNION OF INDIA AND ORS. on 21 January 2019

ANIL KUMAR

v.

UNION OF INDIA AND ORS.

(Civil Appeal No. 888 of 2019)

JANUARY 21, 2019

[DR. DHANANJAYA Y CHANDRACHUD AND

HEMANT GUPTA, JJ.]

CSIR Recruitment & Promotions Rules for Administrative Staff,1982 – Claim for financial upgradation and promotion – Appellantwas aggrieved by the rejection of his claim for financial upgradationand promotion by the Council for Scientific and Industrial Research(CSIR) – Appellant contended that the failure to communicate theAnnual Confidential Reports (ACRs) in which he had failed to meetthe benchmark violated the O.Ms issued by the Department ofPersonnel and Training – CAT rejected the said contention andupheld the rejection by the CSIR – Order of the CAT was affirmedby the High Court – On appeal, held: Both the CAT and the HighCourt were in error in coming to the conclusion that CSIR being anautonomous entity and having adopted the O.Ms of the Departmentof Personnel and Training with effect from a specified date, theappellant could not make a grievance of the non-communication ofthe ACRs for the relevant period – In Dev Dutt v. Union of India &Ors., it was held that fairness in public administration andtransparency require that all entries in the Annual ConfidentialReports (ACRs) of a public servant must be communicated within areasonable period in order to enable the employee to make arepresentation for upgradation and a failure to communicate wouldbe arbitrary – In instant case, the failure to communicate the ACRsdeprived the appellant of the opportunity to submit his representationin the matter of financial upgradation – Subsequently, appellantwas furnished with opportunity to submit his representation forregular promotion, but it was not considered – CSIR being anautonomous body do have certain administrative privileges, but itcannot claim a privilege not to comply with the judgment of theSupreme Court – CSIR was bound to follow the principles laid downin Dev Dutt’s case – Thus, appellant granted an opportunity to submithis representation in respect of the ACRs for the concerned years

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[2019] 2 S.C.R.

Awhere he did not fulfil the benchmark for financial upgradation –Service Law.

Council for Scientific and Industrial Research (CSIR)notified the eligibility of the appellant for grant of financialupgradation with effect from 10 May 2011. However, the name ofBthe appellant did not appear in the list of officers for financialupgradation. The ACRs of the appellant were below thebenchmark required for certain years namely 2003-2004, 2008-2009 and 2009-2010. The gradings were communicated to theappellant on 9 July 2014 to which he submitted a representationfor regular promotion, but it was not considered. The appellantCwas neither granted a financial upgradation nor was he promotedas a part of the exercise of regular promotion to the higher post.Central Administrative Tribunal did not find any substance in theappellant’s grievance. Writ petition filed by the appellant beforethe High Court was also rejected. Hence, the present Appeal.DAllowing the appeal, the Court HELD: 1. In Dev Dutt vs. Union of India & Ors. a twoJudge Bench of this Court held that fairness in publicadministration and transparency require that all entries in theAnnual Confidential Reports of a public servant must beEcommunicated within a reasonable period in order to enable theemployee to make a representation for upgradation. The view ofthe Court was that non-communication of entries in the ACRshas civil consequences since it may affect the chances of theemployee for promotion and other benefits. A failure toFcommunicate would be arbitrary. This Court held that thesedirections would apply to employees of statutory authorities, publicsector corporations and other instrumentalities of the State, inaddition to government servants. [Para 13] [526-B-D]

2. A three Judge Bench of this Court has in Sukhdev Singhvs. Union of India & Ors. affirmed the correctness of the viewGtaken in Dev Dutt noting that an earlier three Judge Bench inAbhijit Ghosh Dastidar vs. Union of India & Ors. had adoptedthe same principle. [Para 14] [526-D-E]

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3. In view of the Supreme Court judgments, both theTribunal and the High Court were in error in coming to theconclusion that CSIR being an autonomous entity and havingadopted the O.Ms of the Department of Personnel and Trainingwith effect from a specified date, the appellant could not make agrievance of the non-communication of the ACRs for the relevantperiod. [Para 16] [527-B]

4. The failure to communicate the ACRs deprived theappellant of the opportunity to submit his representation in thematter of financial upgradation. Subsequently, the appellant wasfurnished with an opportunity to submit his representation beforehis case was taken up for regular promotion, but his representationwas not considered. [Para 17] [527-C]

5. The appellant did not have the benefit of submitting hisrepresentation when the Screening Committee took up the casefor financial upgradation. CSIR by reason of its autonomy mayhave certain administrative privileges. No authority can,however, claim a privilege not to comply with a judgment of thisCourt. Once the law was enunciated in Dev Dutt’s case, allinstrumentalities of the State were bound to follow the principleslaid down by this Court. CSIR was no exception. [Para 18][527-D-E]

6. The appellant has since retired from service on 30September 2014. The grant of MACP benefit is not a matter ofright and it is after the Screening Committee finds that the officermeets the benchmark that an upgradation can be granted. Hence,this Court is of the view that the appellant should be granted anopportunity, to submit his representation in respect of the ACRsfor the concerned years where he did not fulfil the benchmark forfinancial upgradation. Upon the submission of his representation,the respondents shall consider it and communicate the outcometo the appellant. Based on that decision, the case of the appellantfor financial upgradation shall be considered afresh. In the eventhis ACRs for the relevant period are upgraded, the case forfinancial upgradation shall be further determined and the case ofthe appellant for promotion to the post of Senior Deputy Secretary/Controller of Administration shall be considered afresh by theDepartmental Promotion Committee expeditiously. [Paras 19, 20,21 and 22] [527-F-H; 528-A-B]

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ADev Dutt v. Union of India & Ors.(2008) 8 SCC725 : [2008] 8 SCR 174 ;Sukhdev Singh v. Union ofIndia (2013) 9 SCC 566 : [2013] 5 SCR 1004 :AbhijitGhosh Dastidar v. Union of India & Ors. (2009) 16SCC 146 – relied on.

BCase Law Reference

CCIVIL APPELLATE JURISDICTION : Civil Appeal No.888 of

2019.

From the Judgment and Order dated 13.07.2016 of the High Courtof Punjab and Haryana at Chandigarh in CWP No.13390 of 2016.

D.N. Goburdhun, Prashant Chaudhary, R.K. Singh, Syed JafarDHussain, Advs. for the Appellant.

Jayesh K. Unnikrishnan, Vijay Pratap Singh, Advs. for theRespondents.

The Judgment of the Court was delivered byEDR. DHANANJAYA Y. CHANDRACHUD, J.

1. Leave granted.

2. The appellant was aggrieved by the rejection of his claim forfinancial upgradation by the Council for Scientific and Industrial ResearchF(“CSIR”) with effect from 10 May 2011. He was also aggrieved by notbeing promoted to the post of Senior Controller of Administration / SeniorDeputy Secretary in Pay Band-4 i.e. Rs.37,400 – 67,000 with a gradepay of Rs. 8700 in respect of vacancies for 2013-2014 under the CSIRRecruitment & Promotion Rules for Administrative Staff, 1982.

3. He moved the Central Administrative Tribunal, Chandigarh.GThe Tribunal did not find any substance in his grievance for the reasonthat he did not fulfil the benchmark of “Very Good” for financialupgradation. The Tribunal was of the view that CSIR is an autonomousbody and that the circulars issued by the Union of India would not ipsofacto apply.H

4. The grievance of the appellant was that the failure tocommunicate the Annual Confidential Reports in which he had failed tomeet the benchmark violated the O.Ms issued by the Department ofPersonnel and Training.

5. The Tribunal rejected that contention holding that since CSIRhad adopted the requirement of conveying the ACRs from a particulardate in the future, the decision could not be questioned. On the issue ofpromotion, it has been held that this involved a selection on the basis ofperformance in service and in the interview and since the DepartmentalPromotion Committee had graded the appellant as “good”, he was notconsidered for promotion. This view of the Central Administrative Tribunalwas challenged before the High Court of Punjab and Haryana.

6. By a judgment dated 13 July 2006, the writ petition filed by theappellant was dismissed.

7. The first grievance of the appellant was that he was entitled tofinancial upgradation under the MACP scheme adopted by CSIR. It isnot in dispute that the benchmark prescribed was “Very Good” for financialupgradation to the grade pay of Rs. 7600/- and above. CSIR, by itsletter dated 30 December 2013, notified the eligibility of the appellant forthe grant of financial upgradation with effect from 10 May 2011. Similarly,by its circular dated 6 February 2014, CSIR issued an All India FinalSeniority List of Common Cadre Officers as on 1 January 2014. Thename of the appellant stood at Serial No. 2 in the category of DeputySecretary/Controller of Administration.

8. On 9 May 2014, CSIR declared the result of the exerciseconducted by the Screening Committee which met on 21 April 2014.The name of the appellant did not appear in the list of officers for financialupgradation from 10 May 2011.

9. The ACRs of the appellant were below the benchmark requiredfor certain years namely 2003-2004, 2008-2009 and 2009-2010.

10. The gradings were eventually communicated to the appellanton 9 July 2014 to which he submitted a representation and appeared forthe interview for regular promotion for 2013-2014. The grievance is thatthe representation was not considered.When the panel for the post ofSenior Deputy Secretary/Senior Controller of Administration for 2013-2014 was notified, officers junior to the appellant were empaneled forpromotion.

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A11. The appellant was neither granted a financial upgradation norwas he promoted as a part of the exercise of regular promotion to thehigher post.

12. The High Court affirmed the view of the Tribunal and rejectedthe writ petition filed by the appellant.

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13. In Dev Dutt vs. Union of India & Ors.[1] a two Judge Benchof this Court held that fairness in public administration and transparencyrequire that all entries in the Annual Confidential Reports of a publicservant must be communicated within a reasonable period in order toenable the employee to make a representation for upgradation. TheCview of the Court was that non-communication of entries in the ACRshas civil consequences since it may affect the chances of the employeefor promotion and other benefits. A failure to communicate would bearbitrary. This Court held that these directions would apply to employeesof statutory authorities, public sector corporations and otherinstrumentalities of the State, in addition to government servants.D

14. A three Judge Bench of this Court has in Sukhdev Singh vs.Union of India & Ors.[2] affirmed the correctness of the view taken inDev Dutt (supra) noting that an earlier three Judge Bench in AbhijitGhosh Dastidar vs. Union of India & Ors.[3] had adopted the sameprinciple.

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15. The three Judge Bench in Sukhdev Singh (supra), held thus:

“8. In our opinion, the view taken in Dev Dutt that every entry inACR of a public servant must be communicated to him/her withina reasonable period is legally sound and helps in achieving threefoldFobjectives. First, the communication of every entry in the ACR toa public servant helps him/her to work harder and achieve morethat helps him in improving his work and give better results. Secondand equally important, on being made aware of the entry in theACR, the public servant may feel dissatisfied with the same.Communication of the entry enables him/her to makeGrepresentation for upgradation of the remarks entered in the ACR.Third, communication of every entry in the ACR bringstransparency in recording the remarks relating to a public servantand the system becomes more conforming to the principles of1 (2008) 8 SCC 7252 (2013) 9 SCC 566H3 (2009) 16 SCC 146

natural justice. We, accordingly, hold that every entry in ACR -poor, fair, average, good or very good - must be communicated tohim/her within a reasonable period.”

16. In view of the above statement of law, both the Tribunal andthe High Court were in error in coming to the conclusion that CSIRbeing an autonomous entity and having adopted the O.Ms of theDepartment of Personnel and Training with effect from a specified date,the appellant could not make a grievance of the non-communication ofthe ACRs for the relevant period.

17. The failure to communicate the ACRs deprived the appellantof the opportunity to submit his representation in the matter of financialupgradation. Subsequently, the appellant was furnished with anopportunity to submit his representation before his case was taken upfor regular promotion, but his representation was not considered.

18. The appellant did not have the benefit of submitting hisrepresentation when the Screening Committee took up the case forfinancial upgradation. CSIR by reason of its autonomy may have certainadministrative privileges. No authority can, however, claim a privilegenot to comply with a judgment of this Court. Once the law was enunciatedin Dev Dutt’s case (supra), all instrumentalities of the State were boundto follow the principles laid down by this Court. CSIR was no exception.

19. The appellant has since retired from service on 30 September2014.

20. The grant of MACP benefit is not a matter of right and it isafter the Screening Committee finds that the officer meets the benchmarkthat an upgradation can be granted.

21. Hence, we are of the view that the appellant should be grantedan opportunity, within a period of four weeks from today to submit hisrepresentation in respect of the ACRs for the concerned years wherehe did not fulfil the benchmark for financial upgradation. Upon thesubmission of his representation, the respondents shall consider it andcommunicate the outcome to the appellant within a period of two monthsthereafter. Based on that decision, the case of the appellant for financialupgradation shall be considered afresh. In the event his ACRs for therelevant period are upgraded, the case for financial upgradation shallbe determined within a period of three months thereafter.

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A22. We also direct that in the event that the ACRs for the relevantperiod are upgraded, the case of the appellant for promotion to the postof Senior Deputy Secretary/Controller of Administration shall beconsidered afresh by the Departmental Promotion Committeeexpeditiously. This exercise shall be carried out with reference to thedate on which his junior in service came to be promoted.B

23. In the event that the case of the appellant is consideredfavourably, he would be entitled to all consequential benefits which flowfrom the financial upgradation and upon the grant of regular promotionto the post of Senior Deputy Secretary.

C24. The appeal is, accordingly, allowed and the judgment of theHigh Court shall stand set aside.

25. Pending application(s), if any, shall stand disposed of.

26. No order as to costs.

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Ankit Gyan

Appeal allowed.

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