caselaws
Supreme Court of India
Prabhu Dayal Khandelwal vs Chairman, U.P.S.C. & Ors on 23 July, 2015Bench: Jagdish Singh Khehar, Adarsh Kumar Goel
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). 8006-8007/2003
PRABHU DAYAL KHANDELWAL APPELLANT(S)
VERSUS
CHAIRMAN, U.P.S.C. & ORS. RESPONDENT(S)
O R D E R
J.S. Khehar, J.
1. The claim of the appellant-Prabhu Dayal Khandelwal was to be
considered for promotion from the post of Commissioner of Income Tax to
that of Chief Commissioner of Income Tax. 55 vacancies in the cadre of
Chief Commissioner of Income Tax arose in the year 2000-2001, and a further
46 vacancies arose during the year 2001-2002.
2. It is not a matter of dispute, that the benchmark for promotion to
the post of Chief Commissioner of Income Tax, under the prevailing DoPT
guidelines was “very good”. In other words only such of the Commissioners
of Income Tax, whose service record was “very good” would be treated as
satisfying the “merit” component in the process of selection. When the
claim of the appellant arose for consideration, the five Annual
Confidential Reports which were liable to be taken into consideration were,
for the years 1995-1996 to 1999-2000. Of the aforesaid Reports, in three
the appellant was graded as “good” (for the years 1995-1996, 1996-1997 and
1998-1999), and in the remaining two he was graded as “very good” (for the
years 1997-1998 and 1999-2000). On account of the fact, that the appellant
did not satisfy the benchmark stipulated in the DoPT guidelines, he was not
considered fit for promotion, to the post of Chief Commissioner of Income
Tax.
3. The appellant raised a challenge against the action of the
respondents/authorities, in superseding his claim for promotion to the post
of Chief Commissioner of Income Tax, by filing O.A. No.290 of 2001, before
the Central Administrative Tribunal, Calcutta Bench, on the ground that
uncommunicated Annual Confidential Reports could not be taken into
consideration, to defeat his claim for promotion. The pointed contention
of the respondent, in this behalf was, that all the three Annual
Confidential Reports in which he had been graded as “good” (detailed above)
had not been communicated to him. The Administrative Tribunal accepted the
prayer made by the appellant and accordingly passed the following
directions:-
“19. In view of the above, we find merit in both the applications.
We, therefore, allow both the applications. Since the appellants have not
been found unfit for promotion in the over all assessment of the DPC
meeting held on February 5 and 6, 2001, we direct all the respondents viz.
Secretary, Deptt. of Revenue, Chairman CBDT, Member CBDT and Chairman, UPSC
to reconsider the cases of both the applicants by holding the meeting of
Review DPC on urgent basis on the basis of our above observations keeping
in view the assessment made by the DPC in the meeting held on February 5
and 6, 2001 and to recommend their case within a period of three weeks from
the date of receipt of this order to the competent authority for further
necessary action including grant of all the consequential benefits to the
applicants from the date their immediate juniors have been granted as a
result of recommendations of the DPC meeting held on February 5 and 6, 2001
within a further period of three weeks and communicate the final order to
the applicants within a week thereafter.”
4. The aforesaid order passed by the Administrative Tribunal, was
assailed by the Union Public Service Commission, as also, the Union of
India, before the High Court of Calcutta, by filing separate writ
petitions. The High Court accepted the prayer made by the Union Public
Service Commission as well as the Union of India while disposing of
W.P.C.T. No.772 of 2002 and W.P.C.T. No.803 of 2002, vide its order dated
20.12.2002. Dissatisfied with the above order, the appellant-Prabhu Dayal
Khandelwal has approached this Court, through the instant civil appeals.
5. In so far as the issue of non-consideration of the claim of the
appellant is concerned, we are satisfied that the proposition of law
relevant for the controversy in hand, was declared upon by this Court in
Abhijit Ghosh Dastidar v. Union of India and others, (2009) 16 SCC 146,
wherein a three-Judge Division Bench of this Court, held as under:-
“7. It is not in dispute that CAT, Patna Bench passed an order recommending
the authority not to rely on the order of caution dated 22.09.1997 and the
order of adverse remarks dated 09.06.1998. In view of the said order, one
obstacle relating to his promotion goes.
8. Coming to the second aspect, that though the benchmark “very good” is
required for being considered for promotion, admittedly the entry of “good”
was not communicated to the appellant. The entry of “good” should have been
communicated to him as he was having “very good” in the previous year. In
those circumstances, 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 armed forces), it has
civil consequences because it may affect his chances of promotion or
getting other benefits. Hence, such non-communication would be arbitrary,
and as such violative of Article 14 of the Constitution. The same view has
been reiterated in the above referred decision [Dev Dutt v. Union of India
and Others, (2008) 8 SCC 725] relied on by the appellant. Therefore, the
entries “good” if at all granted to the appellant, the same should not have
been taken into consideration for being considered for promotion to the
higher grade. The respondent has no case that the appellant had ever been
informed of the nature of the grading given to him.”
6. The aforesaid position of law has again been affirmed by this Court
in Sukhdev Singh v. Union of India and Others, (2013) 9 SCC 566, wherein
another three-Judge Division Bench of this Court, has concluded as under:-
“8. In our opinion, the view taken in Dev Dutt that every entry in ACR of a
public servant must be communicated to him/her within a reasonable period
is legally sound and helps in achieving threefold objectives. First, the
communication of every entry in the ACR to a public servant helps him/her
to work harder and achieve more that helps him in improving his work and
give better results. Second and equally important, on being made aware of
the entry in the ACR, the public servant may feel dissatisfied with the
same. Communication of the entry enables him/her to make representation for
upgradation of the remarks entered in the ACR. Third, communication of
every entry in the ACR brings transparency in recording the remarks
relating to a public servant and the system becomes more conforming to the
principles of natural justice. We, accordingly, hold that every entry in
ACR – poor, fair, average, good or very good – must be communicated to
him/her within a reasonable period.”
7. In the above view of the matter, we are satisfied that the impugned
order passed by the High Court, deserves to be set aside, inasmuch as, the
claim of the appellant could not be ignored by taking into consideration,
uncommunicated Annual Confidential Reports for the years 1995-1996, 1996-
1997 and 1998-1999, wherein the appellant was assessed as “good”. In the
absence of the aforesaid entries, it is apparent, that the remaining
entries of the appellant being “very good”, he would be entitled to be
considered fit for the promotion, to the post of Chief Commissioner of
Income Tax, on the basis of the then prevailing DoPT guidelines, and the
remaining valid Annual Confidential Reports.
8. On the issue, whether the representations filed by the appellant
against the Reports for the years 1995-1996, 1996-1997 and 1998-1999 need
to be taken to their logical conclusion, we are of the view, that since
almost two decades have passed by since the aforesaid Annual Confidential
Reports were recorded, it would be too late in the day to require the
Authorities to adjudicate upon the representations made by the appellant as
against the uncommunicated Annual Confidential Reports.
9. In the above view of the matter, we are satisfied, that the
respondents ought to be directed to reconsider the claim of promotion of
the appellant, to the post of Chief Commissioner of Income Tax, for the
vacancies which arose during the years 2000-2001 and 2001-2002 on the basis
of the communicated reports for the years 1997-1998 and 1999-2000, within a
period of three months from today. Ordered accordingly.
10. In case the appellant is found to be entitled for promotion to the
post of Chief Commissioner of Income Tax, he shall be promoted to the said
post, with effect from the date of his entitlement. In such an
eventuality, he shall also be entitled to all arrears of salary, as would
have been payable to him, if he had been promoted as Chief Commissioner of
Income Tax at the right time. Simultaneously, he would be entitled to
revision of his retiral benefits.
11. In case the appellant is found suitable for promotion, this order
should not be taken as permitting the authorities, to interfere with the
promotions already made. Suffice it to state, that to accommodate the
appellant, it shall be open to the authorities to create a notional post,
for giving effect to the instant order.
12. To the extent indicated above, the appeals are allowed.
…………………………..J.
[JAGDISH SINGH KHEHAR]
…………………………..J.
[ADARSH KUMAR GOEL]
NEW DELHI;
JULY 23, 2015.
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