PANKAJ PRAKASH versus UNITED INDIA INSURANCE CO LTD & ANR on 10 July 2019

1. Leave granted.

2. The dispute in the present case arises from the appellant’sclaim for promotion from Scale III to Scale IV in the services of theErespondents. The year of promotion is 2014-2015.

3. The grievance of the appellant is that the entries in his AnnualPerformance Appraisal Report[1] for 2010-11 and 2011-12 were notdisclosed, as a result of which he was unable to submit a representationat the material time. The appellant had the following gradings in theFAPARs:

(i) 2010-2011“C”(ii)2011-2012“B”(iii)2012-2013“A”(iv)2013-2014“A”

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4. Relying on the two-judge Bench decision of this Court in DevDutt v Union of India[2]and the subsequent decision of the three-judge Bench in Sukhdev Singh v Union of India[3], the appellant contendedthat the failure to communicate the entries for 2010-11 and 2011-12 iscontrary to the law laid down by this Court. Moreover, it has beensubmitted that on 14 May 2009 and 13 April 2010, the Union of India inthe Ministry of Personnel, Public Grievances and Pensions (Departmentof Personnel and Training) had issued directions for implementation ofthe decision in Dev Dutt (supra). Thereafter, on 19 October 2012, theUnion of India in the Ministry of Finance (Department of FinancialServices) had drawn the attention of public sector insurance companiesto the earlier Office Memorandum dated 14 May 2009 seeking immediatecompliance. In this background, it has been submitted that the HighCourt of Judicature at Allahabad, which was moved by the appellant inproceedings under Article 226, was in error in coming to the conclusionthat absent an adverse entry or an entry below the benchmark, the failureto communicate did not result in an actionable grievance. The HighCourt dismissed the writ petition by its judgment dated 6 October 2016as well as the review petition by its judgment dated 17 January 2017.The present proceedings were instituted assailing the judgments of theHigh Court.

5. In the counter affidavit filed on behalf of the respondent, it hasbeen stated that following a circular dated 18 March 2014, all publicsector insurance companies have disclosed APARs since appraisal year2013-14. It has been submitted that in consequence, there was nonecessity to disclose the APARs to the appellant for the relevant years(2010-11 and 2011-12).

6. Adopting the line of submission which has been set out in thecounter affidavit, Mr P P Malhotra, learned senior counsel appearing onbehalf of the respondents, submitted that in terms of the Promotion Policyfor Officers – 2006[4], promotions from Scale III to Scale IV are basedon (i) a written test; (ii) the work record; and (iii) seniority. It wassubmitted that in the present case the appellant failed to fulfill the cut-offfor promotion of 68.98 marks, as disclosed to him on 9 September 2014.

7. Dr. Manish Singhvi, learned senior counsel appearing on behalfof the appellant, submitted that the defence which has been set out onbehalf of the respondent has no substance since, following the law laid 2 (2008) 8 SCC 7253 (2013) 9 SCC 5664 Annexure P-1

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Adown by this Court in Dev Dutt (supra), all entries in the APARs arerequired to be communicated. Non-communication of the entries, in thepresent case, is a matter of prejudice since the communication dated 9September 2014 indicates that, in appraising his work record, the appellantwas given 40.15 marks out of a maximum of 45. This indicates that theuncommunicated entries for 2010-11 and 2011-12 have weighed againstBhim.

8. While assessing the rival submissions, we must, at the outset,note that the law laid down by the two-judge Bench of this court in DevDutt (supra) has been reaffirmed by three judges in Sukhdev Singh(supra). In Sukhdev Singh (supra), this Court held:C

“8. In our opinion, the view taken in Dev Dutt [Dev Dutt v. Unionof India, (2008) 8 SCC 725 : (2008) 2 SCC (L&S) 771] thatevery entry in ACR of a public servant must be communicated tohim/her within a reasonable period is legally sound and helps inachieving threefold objectives. First, the communication of everyDentry in the ACR to a public servant helps him/her to work harderand achieve more that helps him in improving his work and givebetter results. Second and equally important, on being made awareof the entry in the ACR, the public servant may feel dissatisfiedwith the same. Communication of the entry enables him/her toEmake representation for upgradation of the remarks entered inthe 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 ofnatural justice. We, accordingly, hold that every entry in ACR—poor, fair, average, good or very good—must be communicated toFhim/her within a reasonable period.”

9. The Union of India had also issued Office Memoranda on 14May 2009 and 13 April 2010 seeking compliance by all Ministries andDepartments. Moreover, on 19 October 2012, a specific communicationwas also addressed to public sector insurance companies. EvenGindependent of these communications, the respondent was duty boundto comply with the law laid down by this Court. They cannot urge thatthe decision having been implemented from 2013-14, it has no applicationfor the earlier years. The judgment of this Court is declaratory in nature.

10. Learned senior counsel appearing on behalf of the respondent,while placing reliance on the disclosure made to the appellant on 9September 2014, submitted that even if a communication were to bemade, no difference would result in the ultimate outcome. Mr. Malhotraurged that the promotion for 2014-15 depended on the APARs for 2011-12, 2012-13 and 2013-14.

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11. The relevant part of the communication dated 9 September2014 provides thus:

“1. The marks secured by you in the Promotion Exercise 2014-15is as under:

2. The cut-off marks for promotion (Scale III to IV) is as under:

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12. The above communication indicates that for the normalchannel, with which we are concerned, the appellant secured 64.45 marksagainst the cut-off of 68.98 for promotion from Scale III to Scale IV.

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13. Admittedly, for one of the years under consideration (2011-12) for the promotional exercise for 2014-15, the appellant was graded a“B”, while for the subsequent two years, he was graded an “A”.Consequently, the fact that the appellant was given a lower grading for2011-12 would materially affect whether or not he should be promotedGfrom Scale III to Scale IV for the year in question. The non-communication of the entries is, therefore, a matter in respect of whicha legitimate grievance can be made by the appellant, particularly havingregard to the position in law laid down in Dev Dutt (supra) and SukhdevSingh (supra).

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A14. The next question to consider is the substantive relief whichshould be granted to the appellant. The promotional exercise of 2014-15has been completed. The appellant has since been promoted in 2018.The ends of justice would be made if a direction is issued to the respondentto consider the representation, if any, that may be submitted by theappellant in respect of the grading which was assigned to him for theBrelevant years which were taken into consideration during the promotionalexercise for 2014-15.

15. We issue the following directions:

(i) Within a period of one month from the date of receipt of aCcertified copy of this order, the respondent shall communicateto the appellant the uncommunicated entries in the APARsfor the years which were taken into account for thepromotional exercise of 2014-15;

(ii) Within a period of two months from the date of receipt of theDabove, it would be open to the appellant to submit his objectionsand representation to the respondent;

(iii) The representation shall be considered within a period ofthree months from the date of receipt of the representation;

(iv) Thereafter, based on the result of the decision, the competentEauthority shall take a decision on whether any modification inthe decision for promotion from Scale III to Scale IV for2014-15 in respect of the appellant is warranted; and

(v) In order to ensure that this exercise is carried out fairly, wedirect that the competent authority shall ensure that theFrepresentation that is submitted by the appellant is placedbefore an authority at a sufficiently senior level to obviateany bias or injustice.

16 The impugned judgments and orders of the High Court are setaside. The appeals are allowed in the above terms. There shall be noGorder as to costs.

Nidhi Jain

Appeals allowed.

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