@JUDGMENTTAG-ORDER
Sanjay Yadav, J.@mdashThe sole issue which comes up for consideration in the present petition is whether the petitioner is entitled for the
communication of remarks recorded in his Annual Confidential Roll even when these remarks are not adverse, though at some point of time in the
service career the same may come in his way in career progression.
2. The facts in nutshell leading to cropping up to aforesaid issue may be noted first. The petitioner was initially appointed in the Sub-ordinate
Accounts Service Cadre on 28-6-1973 and was subsequently confirmed in the cadre with effect from 1-8-1979. The promotion from the
Subordinate Accounts Service is to that of Accounts Officer/Treasury Officer in the Madhya Pradesh Accounts Service. It is the case of the
petitioner that though eligible for being promoted as Accounts Officer/Treasury Officer, he was superceded by order dated 15-6-84 when his
junior was recommended by the Departmental Promotion Committee which held its meeting on 12-11-83. Being aggrieved the petitioner preferred
a writ petition before this Court vide M.P. No. 3791/85 which was transferred to and decided by the Madhya Pradesh Administrative Tribunal on
21-1-1-94, in T.A. No. 1753/88. The Tribunal negatived the claim put forth by the petitioner on the ground that the petitioner did not fulfill the
required criteria, viz., majority of 5 reports should be at least ''good'' (better than average) and the reports of last two years should be good (better
than average) and since the petitioner was having average to his credit, i.e., ''C'' grade, he was not found suitable for promotion. The Tribunal,
however, afforded an opportunity to the petitioner to approach the department against the awarding of grade ''C''. The petitioner taking cue from
the aforesaid direction preferred a representation, however, the same was not entertained on the ground that no case is made out for review of
grading of Annual Confidential Reports of the year 1980 to 1983, vide order dated 6-3-96, Annexure-A-1.
3. Criticizing the aforesaid order it is urged on behalf of the petitioner that the promotions to the post of Accounts Officer/Treasury Officer are
governed by the Rules framed under Article 309 of the Constitution, [known as, Madhya Pradesh Accounts Service (Recruitment and Conditions
of Service) Rules, 1965] and the same is on the basis of merit and seniority. It is contended that the assessment of merit is on the basis of yardstick
adopted by the Departmental Promotion Committee. Learned Counsel for the petitioner placing reliance on the proceedings of the Departmental
Promotion Committee held on 12-11-1983, points out the yardstick of merit adopted is: (i) majority of five reports should be at least ''good''
(better than average) and the last two years'' reports should be ''good'' (better than average). It is submitted that since bench mark was fixed by the
Departmental Promotion Committee for assessing merit, any grading below the yardstick ought to have been treated as adverse to the effect that
the same was coming in way of career progression and should have been communicated, enabling the petitioner to have an opportunity to
represent against the same for its upgradation, and unless such opportunity is given, the same should not have been taken into consideration. To
bring home his submissions the learned Counsel for the petitioner places reliance on judgments of the Apex Court in the case of Dev Dutt v. Union
of India and Ors. AIR 2008 SCW 3486; State of U.P. Vs. Yamuna Shanker Misra and another, and Hav. Gambhir Singh Chahar Vs. Union of
India (UOI) and Others, .
4. Contradicting the submissions put forth on behalf of the petitioner, it is submitted by learned Counsel for the State that there is no provision to
communicate the entries, including the grading recorded in the Annual Confidential Report which are not adverse. It is submitted that the criteria
fixed by the Departmental Promotion Committee for assessing the merit that the majority of the five reports should be at least ''good'' (better than
average) and last two years'' reports should be ''good'' (better than average) does not tentamount that the bench mark for the assessment of merit
was only ''good''. It is contended that even a person having average recorded in the Annual Confidential Report are eligible subject of course to the
stipulation contained in the yardstick fixed by the Departmental Promotion Committee. Reliance placed on the case of Union of India (UOI) and
Another Vs. Major Bahadur Singh, .
5. Considered the rival submissions put forth by the learned Counsel to the parties. The legal position in respect of the issue as to whether an
employee is entitled for communication of remarks/grading recorded in Annual Confidential Roll even when the same are not adverse has come to
be settled. Recently the Apex Court in the case of Dev Dutt (supra) after considering the catena of judgments was pleased to hold that every entry
must be communicated to the employee concerned so that he may have an opportunity of making a representation against it if he is aggrieved.
Their Lordships were of the following opinion:
14. In our opinion, every entry (and not merely a poor or adverse entry) relating to an employee under the State or an instrumentality of the State,
whether in civil, judicial, police or other service (except the military) must be communicated to him, within a reasonable period, and it makes no
difference whether there is a bench mark or not. Even if there is no bench mark, noncommunication of an entry may adversely affect the
employee''s chances of promotion (or getting some other benefit), because when comparative merit is being considered for promotion (or some
other benefit) a person having a ''good'' or ''average'' or ''fair'' entry certainly has less chances of being selected than a person having a ''very good''
or ''outstanding'' entry.
39. 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. 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.
45. In our opinion, non-communication of entries in the Annual Confidential Report of a public servant, whether he is in civil, judicial, police or any
other service (other than the military), certainly has civil consequences because it may affect his chances for promotion or get other benefits (as
already discussed above). Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution.
6. Thus in view of the law as laid down by the Apex Court in the of Dev Dutt (supra) the present petition is allowed and the respondents are
directed to communicate to the petitioner ''average'' entry of the period from 1980 to 1983 within a period of 15 days from the date of
communication of this order and the petitioner is permitted to make a representation against the same within the period of 15 days. The
respondents are further directed to decide the representation given by the petitioner within a period of 15 days from the date of receiving the same
and if the entries of the relevant years are upgraded then the respondents are directed to consider the claim of the petitioner for promotion to the
post of Accounts Officer/Treasury Officer in the Madhya Pradesh Accounts Service from the date when his junior was considered, by holding a
review Departmental Promotion Committee. The said exercise of holding a review Departmental Promotion Committee be completed within a
period of 30 days and if the petitioner is found suitable then all consequential benefit be granted to the petitioner. The petition is allowed to the
extent above. No order as to cost.
