Vinod Kumar Gupta Vs State Of Madhya Pradesh

The petitioner has prayed for following relief:-

“(A) Call for the entire material record from the respondents pertaining to the instant controversy.

(B) The Hon’ble Court may kindly be pleased to direct the respondents authority to give the all monetary benefits of 1st Kramonnati and Second

Kramonnati after completion of 12 and 24 years of services to the petitioner and also direct to grant arrears of said benefit with interest.

(C) Direct the respondent to grant benefit from 11-12-1999 instead of 10-04-2007, and also grant him 2nd krammonti vetenman.

(D) Any other relief may also granted which this Hon’ble Court deems fit and proper in favour of the petitioner together with the cost of

petition.â€​

(2) The claim of petitioner for grant of Kramonnati was declined by order dated 23.09.2014 (Annexure-P/8). The singular reason assigned is that

petitioner’s claim was considered in the meeting of Departmental Promotion Committee but he was not found eligible because he could not

achieve the benchmark fixed for grant of requisite benefit.

(3) The department by filing reply has reiterated the same stand and contended that petitioner’s grading based on last five years’ ACRs were

below the benchmark, hence, he did not get the benefit.

(4) Learned counsel for the petitioner contended that the grading of petitioner is based on five year’s ACRs but such ACRs were never

communicated to him. He placed reliance on the judgment of Supreme Court in the case of Dev Dutt vs. Union of India & others reported in 2008 (8)

SCC 725 and prayed for similar direction.

(5) Prayer is opposed by Mr. Puneet Shroti, learned Panel Lawyer.

(6) No other point has been pressed by the learned counsel for the petitioner.

(7) I have heard the parties at length and perused the record.

(8) In view of rival contentions, it is clear that respondents have not communicated the relevant ACRs to the petitioner. It is interesting to note here

that adverse CR is not defined in any Statute. Any ACR which has a potential to adversely affect the career of an employee should be termed as an

adverse CR. In a case, for example, if benchmark is “very goodâ€, an ACR of “good†will have an adverse impact on career of an employee.

In those circumstances even a “good†ACR will be treated as adverse CR. This position has been dealt with by the Supreme Court in Dev Dutt

(supra), wherein the Supreme Court has opined as under:-

“13. 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 benchmark or not. Even if there is no benchmark, non-communication 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 goodâ€

or “outstandingâ€​ entry.

14. In most services there is a gradation of entries, which is usually as follows:(i) Outstanding

(ii) Very Good

(iii) Good

(iv) Average

(v) Fair

(vi) Poor

A person getting any of the entries at Items (ii) to (vi) should be communicated the entry so that he has an opportunity of making a representation

praying for its upgradation, and such a representation must be decided fairly and within a reasonable period by the authority concerned.

15. If we hold that only “poorâ€​ entry is to be communicated, the consequences may be that persons getting “fairâ€​, “averageâ€​, “goodâ€​

or “very good†entries will not be able to represent for its upgradation, and this may subsequently adversely affect their chances of promotion (or

get some other benefit).

16. In our opinion if the office memorandum dated 10/11-9-1987, is interpreted to mean that only adverse entries (i.e. “poor†entry) need to be

communicated and not “fairâ€, “average†or “good†entries, it would become arbitrary (and hence illegal) since it may adversely affect

the incumbent's chances of promotion, or to get some other benefit. For example, if the benchmark is that an incumbent must have “very goodâ€

entries in the last five years, then if he has “very good†(or even “outstandingâ€) entries for four years, a “good†entry for only one year

may yet make him ineligible for promotion. This “good†entry may be due to the personal pique of his superior, or because the superior asked him

to do something wrong which the incumbent refused, or because the incumbent refused to do sycophancy of his superior, or because of caste or

communal prejudice, or to for some other extraneous consideration.

17. In our opinion, every entry in the ACR of a public servant must be communicated to him within a reasonable period, whether it is a poor, fair,

average, good or very good entry. This is because noncommunication of such an entry may adversely affect the employee in two ways: (1) had the

entry been communicated to him he would know about the assessment of his work and conduct by his superiors, which would enable him to improve

his work in future; (2) he would have an opportunity of making a representation against the entry if he feels it is unjustified, and pray for its

upgradation. Hence, non-communication of an entry is arbitrary, and it has been held by the Constitution Bench decision of this Court in Maneka

Gandhi v.Union of India [(1978) 1 SCC 248 : AIR 1978 SC 597] that arbitrariness violates Article 14 of the Constitution.

18. Thus, it is not only when there is a benchmark but in all cases that an entry (whether it is poor, fair, average, good or very good) must be

communicated to a public servant, otherwise there is violation of the principle of fairness, which is the soul of natural justice. Even an outstanding

entry should be communicated since that would boost the morale of the employee and make him work harder.

19. Learned counsel for the respondent has relied on the decision of this Court in U.P. Jal Nigam v. Prabhat Chandra Jain [(1996) 2 SCC 363 : 1996

SCC (L&S) 519 : (1996) 33 ATC 217] . We have perused the said decision, which is cryptic and does not go into details. Moreover it has not noticed

the Constitution Bench decision of this Court in Maneka Gandhi v. Union of India [(1978) 1 SCC 248 : AIR 1978 SC 597] which has held that all State

action must be non-arbitrary, otherwise Article 14 of the Constitution will be violated. In our opinion the decision in U.P. Jal Nigam [(1996) 2 SCC 363

: 1996 SCC (L&S) 519 : (1996) 33 ATC 217] cannot be said to have laid down any legal principle that entries need not be communicated. As

observed in Bharat Petroleum Corpn. Ltd. v. N.R. Vairamani [(2004) 8 SCC 579 : AIR 2004 SC 4778] (vide AIR para 9): (SCC p. 584)

“9. … Observations of courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context.â€​

20. In U.P. Jal Nigam case [(1996) 2 SCC 363 : 1996 SCC (L&S) 519 : (1996) 33 ATC 217] there is only a stray observation “if the graded entry

is of going a step down, like falling from ‘very good’ to ‘good’ that may not ordinarily be an adverse entry since both are a positive

gradingâ€. There is no discussion about the question whether such “good†grading can also have serious adverse consequences as it may virtually

eliminate the chances of promotion of the incumbent if there is a benchmark requiring “very good†entry. And even when there is no benchmark,

such downgrading can have serious adverse effect on an incumbent's chances of promotion where comparative merit of several candidates is

considered.

21. Learned counsel for the respondent also relied upon the decision of this Court in Union of India v. S.K. Goel [(2007) 14 SCC 641 : AIR 2007 SC

1199] and on the strength of the same submitted that only an adverse entry need be communicated to the incumbent. The aforesaid decision is a two-

Judge Bench decision and hence cannot prevail over the seven-Judge Constitution Bench decision of this Court in Maneka Gandhi v. Union of India

[(1978) 1 SCC 248 : AIR 1978 SC 597] in which it has been held that arbitrariness violates Article 14 of the Constitution. Since the aforesaid decision

in Union of India v. S.K. Goel [(2007) 14 SCC 641 : AIR 2007 SC 1199] has not considered the aforesaid Constitution Bench decision in Maneka

Gandhi case [(1978) 1 SCC 248 : AIR 1978 SC 597] , it cannot be said to have laid down the correct law. Moreover, this decision also cannot be

treated as a Euclid's formula since there is no detailed discussion in it about the adverse consequences of non-communication of the entry, and the

consequential denial of making a representation against it.

22. It may be mentioned that communication of entries and giving opportunity to represent against them is particularly important on higher posts which

are in a pyramidical structure where often the principle of elimination is followed in selection for promotion, and even a single entry can destroy the

career of an officer which has otherwise been outstanding throughout. This often results in grave injustice and heartburning, and may shatter the

morale of many good officers who are superseded due to this arbitrariness, while officers of inferior merit may be promoted.

23. In the present case, the action of the respondents in not communicating the “good†entry for the year 1993-1994 to the appellant is in our

opinion arbitrary and violative of natural justice, because in substance the “goodâ€​ entry operates as an adverse entry (for the reason given above).

24. What is natural justice? The rules of natural justice are not codified nor are they unvarying in all situations, rather they are flexible. They may,

however, be summarised in one word: fairness. In other words, what they require is fairness by the authority concerned. Of course, what is fair would

depend on the situation and the context.

25. Lord Esher M.R. in Voinet v. Barrett [(1885) 55 LJQB 39 (CA)] observed:

“Natural justice is the natural sense of what is right and wrong.â€​

26. In our opinion, our natural sense of what is right and wrong tells us that it was wrong on the part of the respondent in not communicating the

“good†entry to the appellant since he was thereby deprived of the right to make a representation against it, which if allowed would have entitled

him to be considered for promotion to the post of Superintending Engineer. One may not have the right to promotion, but one has the right to be

considered for promotion, and this right of the appellant was violated in the present case.

27. A large number of decisions of this Court have discussed the principles of natural justice and it is not necessary for us to go into all of them here.

However, we may consider a few.

28. Thus, in A.K. Kraipak v. Union of India [(1969) 2 SCC 262 : AIR 1970 SC 150] , a Constitution Bench of this Court held: (SCC p. 272, para 20)

“20. … The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two

rules, namely,: (1) no one shall be a judge in his own case (nemo debet esse judex propria causa), and (2) no decision shall be given against a party

without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial

enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be

added to the rules of natural justice.â€​

(emphasis supplied)

The aforesaid decision was followed by this Court in K.I. Shephard v. Union of India[(1987) 4 SCC 431 : 1987 SCC (L&S) 438 : AIR 1988 SC 686]

(AIR vide paras 12-15). It was held in this decision that even administrative acts have to be in accordance with natural justice if they have civil

consequences. It was also held that natural justice has various facets and acting fairly is one of them.

29. In Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant [(2001) 1 SCC 182 : 2001 SCC (L&S) 189 : AIR 2001 SC 24] this Court held (AIR

vide para 2): (SCC p. 188)

“2. … the doctrine (natural justice) is now termed as a synonym of fairness in the concept of justice and stands as the most accepted methodology

of a governmental action.â€​

(emphasis supplied)

In the same decision it was also held following the decision of Tucker, L.J. in Russell v. Duke of Norfolk [(1949) 1 All ER 109 (CA)] : (All ERp. 118

E)

“The requirements of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the tribunal is

acting, the subject-matter that is being dealt with, and so forth.â€​

30. In Union of India v. Tulsiram Patel [(1985) 3 SCC 398 : 1985 SCC (L&S) 672 : AIR 1985 SC 1416] (AIR vide para 97) a Constitution Bench of

this Court referred to with approval the following observations of Ormrod, L.J. in Norwest Holst Ltd. v. Secy. of State for Trade [(1978) 3 WLR 73 :

(1978) 3 All ER 280 : 1978 Ch 201 (CA)] :

(All ER p. 295a-b)

“The House of Lords and this Court have repeatedly emphasised that the ordinary principles of natural justice must be kept flexible and must be

adapted to the circumstances prevailing in any particular case.â€​

(emphasis supplied)

31. Thus, it is well-settled that the rules of natural justice are flexible. The question to be asked in every case to determine whether the rules of natural

justice have been violated is: have the authorities acted fairly?

32. In Swadeshi Cotton Mills v. Union of India [(1981) 1 SCC 664 :AIR 1981 SC 818] this Court following the decision in Mohinder Singh Gill v. Chief

Election Commr. [(1978) 1 SCC 405 : AIR 1978 SC 851] held that the soul of the rule (natural justice) is fair play in action.

33. In our opinion, fair play required that the respondent should have communicated the “good†entry of 1993-1994 to the appellant so that he

could have an opportunity of making a representation praying for upgrading the same so that he could be eligible for promotion. Noncommunication of

the said entry, in our opinion, was hence unfair on the part of the respondent and hence violative of natural justice.

34. Originally there were said to be only two principles of natural justice: (1) the rule against bias and (2) the right to be heard (audi alteram partem).

However, subsequently, as noted in A.K. Kraipak case [(1969) 2 SCC 262 : AIR 1970 SC 150] and K.I. Shephard case [(1987) 4 SCC 431 : 1987

SCC (L&S) 438 : AIR 1988 SC 686] , some more rules came to be added to the rules of natural justice, e.g. the requirement to give reasons vide S.N.

Mukherjee v. Union of India [(1990) 4 SCC 594 : 1990 SCC (Cri) 669 : 1991 SCC (L&S) 242 : (1991) 16 ATC 445 : AIR 1990 SC 1984] . In Maneka

Gandhi v. Union of India [(1978) 1 SCC 248 : AIR 1978 SC 597] (vide paras 56 to 61) it was held that natural justice is part of Article 14 of the

Constitution.

35. Thus natural justice has an expanding content and is not stagnant. It is therefore open to the court to develop new principles of natural justice in

appropriate cases.

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.

37. We further hold that when the entry is communicated to him the public servant should have a right to make a representation against the entry to

the authority concerned, and the authority concerned must decide the representation in a fair manner and within a reasonable period. We also hold that

the representation must be decided by an authority higher than the one who gave the entry, otherwise the likelihood is that the representation will be

summarily rejected without adequate consideration as it would be an appeal from Caesar to Caesar. All this would be conducive to fairness and

transparency in public administration, and would result in fairness to public servants. The State must be a model employer, and must act fairly towards

its employees. Only then would good governance be possible.

38. We, however, make it clear that the above directions will not apply to military officers because the position for them is different as clarified by this

Court in Union of India v. Major Bahadur Singh [(2006) 1 SCC 368 : 2006 SCC (L&S) 959] . But they will apply to employees of statutory authorities,

public sector corporations and other instrumentalities of the State (in addition to government servants).

39. In Canara Bank v. V.K. Awasthy [(2005) 6 SCC 321 : 2005 SCC (L&S) 833] this Court held that the concept of natural justice has undergone a

great deal of change in recent years. As observed in para 8 of the said judgment: (SCC p. 329)

“8. Natural justice is another name for common-sense justice. Rules of natural justice are not codified canons. But they are principles ingrained into

the conscience of man. Natural justice is the administration of justice in a commonsense liberal way. Justice is based substantially on natural ideals and

human values.â€​

In para 12 of the said judgment it was observed: (SCC p. 330) “12. What is meant by the term ‘principles of natural justice’ is not easy to

determine. Lord Summer (then Hamilton, L.J.) in R.v.Loc. Govt. Board [(1914) 1 KB 160 : 83 LJKB 86] described the phrase as sadly lacking in

precision. In General Medical Council v. Spackman [1943 AC 627 : (1943) 2 All ER 337 (HL)], Lord Wright observed that it was not desirable to

attempt ‘to force it into any Procrustean bed’.â€​

40. In State of Maharashtra v. Public Concern for Governance Trust [(2007) 3 SCC 587] it was observed (vide para 39): (SCC p. 606)

“39. … In our opinion, when an authority takes a decision which may have civil consequences and affects the rights of a person, the principles of

natural justice would at once come into play.â€​

41. 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 noncommunication would be arbitrary, and as such violative of Article 14 of the Constitution.

42. In view of the above, we are of the opinion that both the learned Single Judge as well as the learned Division Bench erred in law. Hence, we set

aside the judgment of the learned Single Judge as well as the impugned judgment of the learned Division Bench.

43. We are informed that the appellant has already retired from service. However, if his representation for upgradation of the “good†entry is

allowed, he may benefit in his pension and get some arrears. Hence we direct that the “good†entry of 1993-1994 be communicated to the

appellant forthwith and he should be permitted to make a representation against the same praying for its upgradation. If the upgradation is allowed, the

appellant should be considered forthwith for promotion as Superintending Engineer retrospectively and if he is promoted he will get the benefit of

higher pension and the balance of arrears of pay along with 8% per annum interest.

44. We, therefore, direct that the “good†entry be communicated to the appellant within a period of two months from the date of receipt of the

copy of this judgment. On being communicated, the appellant may make the representation, if he so chooses, against the said entry within two months

thereafter and the said representation will be decided within two months thereafter. If his entry is upgraded the appellant shall be considered for

promotion retrospectively by the Departmental Promotion Committee (DPC) within three months thereafter and if the appellant gets selected for

promotion retrospectively, he should be given higher pension with arrears of pay and interest @ 8% per annum till the date of payment.â€​

(9) A Division Bench of this Court in Writ Appeal No.452/2010 [Ramgopal Verma vs. State of M.P. & others] has followed the aforesaid ratio.

(10) The respondents, in the light of judgment of Dev Dutt (supra) are bound to communicate the relevant ACRs to the petitioner. Thus, I deem it

proper to disposed of this petition with following directions:

(i) Respondents shall communicate the relevant ACRs which became subject matter of consideration of petitioner for grant of Kramonnati to him

within one month from the date of production of copy of this order.

(ii) In turn, the petitioner shall submit his representation against these ACRs within 15 days’ there from.

(iii) The representation of petitioner shall be considered and decided by the competent authority within 30 days’ therefrom. The outcome of such

consideration shall be communicated to the petitioner.

(iv) If upon consideration, the ACRs’ grading of petitioner is improved and he is able to touch the benchmark, the respondents shall convene a

review DPC and consider the claim of petitioner for grant of kramonnati from due date with all consequential benefits. In the event, the ACRs grading

of petitioner is improved and DPC needs to be convened, the aforesaid exercise be completed within 60 days. The necessary order be also passed

thereupon.

(11) With aforesaid observation, petition stands disposed of without expressing any view on the merits of the case.