DEV DUTT v. UNION OF INDIA & ORS.

The Judgment of the Court was delivered by G MARKANDEY KATJU, J. 1.This appeal by special leave has been filed against the impugned judgment of the Gauhati High Court dated 26.11.2001 in Writ Appeal No. 44 7 of 2001. By the aforesaid judgment the Division Bench of the Gauhati High Court dismissed the Writ Appeal of the appellant H filed against the judgment of the Learned Single Judge dated

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> & ORS. [MARKANDEY KATJU, J.]

2Copy pinpoint2. Heard learned counsel for the parties and perused the record.

3Copy pinpoint3. The appellant was in the seNice of the Border Roads Engineering SeNice which is governed by the Border Roads B Engineering SeNice Group 'A' Rules, as amended. As per these rules, since the appellant was promoted as Executive Engineer on 22.2.1988, he was eligible to be considered for promotion to the post of Superintending Engineer on completion of 5 years on the grade of Executive Engineer, which he completed on c 21.2.1993. Accordingly the name of the appellant was included in the list of candidates eligible for promotion.

4Copy pinpoint4. The Departmental Promotion Committee (DPC) held its meeting on 16.12.1994. In that meeting the appellant was not held to be eligible for promotion, but his juniors were se- D lected and promoted to the rank of Superintending Engineer. Hence the appellant filed a Writ Petition before the Gauhati High Court which was dismissed and his appeal before the Division Bench also failed. Aggrieved, this appeal has been filed by special leave before this Court. E

5Copy pinpoint5. The stand of the respondent was that according to para 6.3(ii) of the guidelines for promotion of departmental candi- • dates which was issued by the Government of India, Ministry of Public Grievances and Pension, vide Office Memorandum dated 10.4.1989, for promotion to all posts which are in the pay F scale of Rs.3700-5000/- and above, the bench mark grade should be 'very good' for the last five years before the D.P.C .. In other words, only those candidates who had 'very good' entries in their Annual Confidential Reports (AC Rs) for the last five years would be considered for promotion. The post of Superintend- G ' ing Engineer carries the pay scale of Rs.3700-5000/- and since the appellant did not have 'very good' entry but only 'good' entry for the year 1993-94, he was not considered for promotion to the post of Superintending Engineer. H

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6Copy pinpoint6. The grievance of the appellant was that he was not com- municated the 'good' entry for the year 1993-94. He submitted that had he been communicated that entry he would have had an opportunity of making a representation for upgrading that entry from 'good' to 'very good', and if that representation was B allowed he would have also become eligible for promotion. Hence he submits that the rules of natural justice have been violated.

7Copy pinpoint7. In reply, learned counsel for the respondent submitted that a 'good' entry is not an adverse entry and it is only an ad- C verse entry which has to be communicated to an employee. Hence he submitted that trere was no illegality in not communi- cating the 'good' entry to the appellant.

8Copy pinpoint8. Learned counsel for the respondent relied on a deci- D sion of this Court in Vijay Kumar vs. State of Maharashtra & Ors. 1988 (Supp) sec 674 in which it was held that an un- communicated adverse report should not form the founc.:ation to deny the benefits to a government servant when similar ben- efits are extended to his juniors. He also relied upon a decision of this Court in State of Gujarat & Anr vs. Suryakant Chunila/ Shah 1999 (1) SCC 529 in which it was held:

"Purpose of adverse entries is primarily to forewarn the government servant to mend his ways and to improve his performance. That is why, it is required to communicate the adverse entries so that the government servant to whom the adverse entry is given, may have either opportunity to explain his conduct so as to show that the adverse entry was wholly uncalled for, or to silently brood over the matter and on being convinced that his previous conduct justified such an entry, to improve his performance". G On the strength of the above decisions learned counsel for the respondent submitted that only an adverse entry needs to be communicated to an employee.

9Copy pinpoint9. We do not agree. In our opinion every entry must be H

" DEV DUTT v. UNION OF INDIA 183 ) & ORS. [MARKANDEY KAT JU, J.]

communicated to the employee concerned, so that he may have A an opportunity of making a representation against it if he is ag- grieved.

10Copy pinpoint10. In the present case the bench mark (i.e. the essential requirement) laid down by the authorities for promotion to the post of Superintending Engineer was that the candidate should 8 have 'very good' entry for the last five years. Thus in this situa- tion the 'good' entry in fact is an adverse entry because it elimi- nates the candidate from being considered for promotion. Thus, nomenclature is not relevant, it is the effect which the entry is having which determines whether it is an adverse entry or not. It C is thus the rigours of the entry which is important, not the phrase- ology. The grant of a 'good' entry is of no satisfaction to the incumbent if it in fact makes him ineligible for promotion or has an adverse effect on his chances. D

11Copy pinpoint11. Hence, in our opinion, the 'good' entry should have been communicated to the appellant so as to enable him to make a representation praying that the said entry for the year 1993-94 should be upgraded from 'good' to 'very good'. Of course, after considering such a representation it was open to the authority concerned to reject the representation and confirm th,e 'good' E entry (though of course in a fair manner}, but at least an oppor- tunity of making such a representation should have been given to the appellant, and that would only have been possible had the appellant been communicated the 'good' entry, which was not done in this case. Hence, we are of the opinion that the non- F communication of the 'good' entry was arbitrary and hence ille- gal, and the decisions relied upon by the learned counsel for the respondent are distinguishable.

12Copy pinpoint12. Learned counsel for the respondent submitted that G under the Office Memorandum 21011/4/87 [Estt.'A'] issued by the Ministry of Personnel/Public Grievance and Pensions dated 10/11.09.1987, only an adverse entry is to be communicated to the concerned employee. It is well settled that no rule or gov- ernment instruction can violate Article 14 or any other provision H

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A of the Constitution, as the Constitution is the highest law of the land. The aforesaid Office Memorandum, if it is interpreted to mean that only adverse entries are to be communicated to the concerned employee and not other entries, would in our opin- ion become arbitrary and hence illegal being violative of A1iicle

B 14. All similar Rules/Government Orders/Office Memoranda, in respect of all services under the State, whether civil, judicial, ' police, or other service (except the military), will hence also be illegal and are therefore liable to be ignored.

13Copy pinpoint13. It has been held in Maneka Gandhi vs. Union of India C & Anr Al R 1978 SC 5Sl7 that arbitrariness violates Article 14 of the Constitution. In our opinion, the non-communication of an entry in the A.C.R. of a public servant is arbitrary because it deprives the concerned employee from making a representa- tion against it and praying for its up-gradation. In our opinion, 0 every entry in the Annual Confidential Report of every employee under the State, whether he is in civil, judicial, police or other service (except the military) must be communicated to him, so as to enable him to make a representation against it, because non-communication deprives the employee of the opportunity E of making a representation against it which may affect his chances of being promoted (or get some other benefits). More- over, the object of writing the confidential report and making entries in them is to give an opportunity to a public servant to improve his performance, vide State of UP vs Yamuna F Shankar Misra 1997 (4) SCC 7. Hence such non-communica- tion is, in our opinion, arbitrary and hence violative of Article 14 of the Constitution.

14Copy pinpoint14. 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, non-communication of an entry may adversely affect the employee's chances of promotion (or getting some other ben-

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} & ORS. [MARKANDEY KATJU, J.)

efit), because when comparative merit is being considered for A promotion (or some other benefit) a person having a 'good' or 'average' or 'fair' entry certainly has less chances of being se- lected than a person having a 'very good' or 'outstanding' entry.

15Copy pinpoint15. In most services there is a gradation of entries, which is usually as follows: B

(i) Outstanding

(ii) Very Good (iii) Good c (iv) Average (v) Fair (vi) Poor D . A person getting any of the entries at items (ii) to (vi) should be communicated the entry so tha.t he has an opportunity of making a representation praying for its upgradation, and such a representation must be decided fairly· and within a reason· able period by the concerned authority. E

16Copy pinpoint16. If we hold that only 'poor' entry is to be communicated, the consequences may be that persons getting 'fair', 'average', .\ • 'good' 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). F

17Copy pinpoint17. In our opinion if the Office Memorandum dated 10/ 11.09.1987, is. interpreted to mean that only adverse entries (i.e. 'poor' entry) need to be communicated and not 'fair', 'aver- age' 'or 'good' entries, it would become arbitrary (and hence illegal) since it may adversely affect the incumbent's chances G of promotion, or get some other benefit.

18Copy pinpoint18. For example, if the bench mark is that an incumbent must have 'very good' entries in the last five years, then if he has 'very good' (or even 'outstanding') entries for four years, a ' H

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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 some-· thing wrong which the incumbent refused, or because the in-' cumbent refused to do sycophancy of his superior, or because B of caste or communal prejudice, or for some other extraneous consideration.

19Copy pinpoint19. In our opinion, every entry in the A. C.R. of a public servant must be communicated to him within a reasonable pe- riod, whether it is a poor, fair, average, good or very good entry. C This is because non-communication of such an entry may ad- versely 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 D of making a representation against the entry if he feels it is un- justified, and pray for its upgradation. Hence ron-communica- tion of an entry is arbitrary, and it has been held by the Constitu- tion Bench decision of this Court in Maneka Gandhi vs. Union of India (supra) that arbitrariness violates Article 14 of the Con- E stitution.

20Copy pinpoint20. Thus it is not only when there is a bench mark but in all cases that an entry (whether it is poor, fair, average, good or' very good) must be communicated to a public servant, other- , . ~

wise there is violation of the principle of fairness, which is the soul of natural justice. Even an outstanding entry should be com- municated since that would boost the morale of the employee and make him work harder.

21Copy pinpoint21. Learned counsel for the respondent has relied on the decision of this Court in U. P Jal Nigam vs Prabf1at Chandra Jain AIR 1996 SC 1661. We have perused the said decision, which is cryptic and does not go into details. Moreover it has not noticed the Constitutior. Bench decision of this CJurt in Manaka Gandhi vs. Union of India (supra) which h<''" i:eld that all State action must be .on-arbitrary, otherwise Article t14 of H

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& ORS. [MARKANDEY KAT JU, J.]

· the Constitution will be violated. In our opinion the decision in A U.P. Jal Nigam (supra) cannot be said to have laid down any legal principle that entries need not be communicated. As ob- served in Bharat Petroleum Corporation Ltd. vs. N.R. ' Vairamani AIR 2004 SC 4778 (vide para 9): "Observations of Courts are neither to be read as Euclid's B Theorems nor as provisions of the statute, and that too, taken out of their context".

22Copy pinpoint22. In U.P. Jal Nigam's case (supra) there is only a stray observation "if the graded entry is of going a step down, like c falling from 'very good' to 'good' that may not ordinarily be an adverse entry since both are a positive grading". There is no discussion about the question whether such 'good' grading can also have serious adverse consequences as it may virtually elimi- nate the chances of promotion of the incumbent if there is a D benchmark requiring 'very good' entry. And even when there is nc. benchmark, such downgrading can have serious adverse effect on an incumbent's chances of promotion where compara- tive merit of several candidates is considered.

23Copy pinpoint23. Learned counsel for the respondent also relied upon E the decision of this Court in Union of India & Anr vs. S. K. Goel & Ors. AIR 2007 SC 1199 and on the strength of the same sub- mitted that only an adverse entry need be communicated to the incumbent. The aforesaid decision is a 2-Judge Bench deci- sion and hence cannot prevail over the 7-Judge Constitution F Bench decision of this Court in Maneka Gandhi vs. Union of India (supra) in which it has been held that arbitrariness vio- lates Article 14 of the Constitution. Since the aforesaid deci- sion in Union of India vs. S.K. Goel (supra) has not considered the aforesaid Constitution Bench decision in Maneka Gandhi's G case (supra), 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 ad- verse consequences of non-communication of the entry, and the consequential denial of making a representation against it. H

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24Copy pinpoint24. It may be mentioned that communication of entries and giving opportunity to represent against them is particularly im- portant 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 B an officer which has otherwise been outstanding throughout. This often results in grave injustice and heart-burning, and may shatter the morale of many good officers who are superseded due to this arbitrariness, while officers of inferior merit may be promoted.

25Copy pinpoint25. In the present case, the action of the respondents in not communicating the 'good' entry for the year 1993-94 to the appellant is in our opinion arbitrary and violative of natural jus- tice, because in substance the 'good' entry operates as an ad- verse entry (for the reason given above). D

26Copy pinpoint26. 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 summarized in one word : fairness. In other words, what they require is fairness by the authority concerned. Of course, what is fair would depend on E the situation and the context.

27Copy pinpoint27. Lord Esher M.R. in Voinet vs. Barrett (1885) 55 L.J. QB 39, 39 observed: "Natural justice is the natural sense of what is right and wrong."

28Copy pinpoint28. 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 con- G sidered 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.

29Copy pinpoint29. A large number of decisions of this Court have discussed H

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& ORS. [MARKANDEY KATJU, J.]

the principles of natural justice and it is not necessary for us to go A into all of them here. However, we may consider a few.

30Copy pinpoint30. Thus, in A. K. Kraipak & Ors. vs. Union of India & Ors. AIR 1970 SC 150, a Constitution Bench of this Court held :

"The concept of natural justice has undergone a great B • 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 cause (Nemo debet csse judex propria causa), and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram c 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". D (emphasis supplied)

31Copy pinpoint31. The aforesaid decision was followed by this Court in K. I. Shephard & Ors. vs. Union of India & Ors. AIR 1988 SC 686 (vide paras 12-15). It was held in this decision that even administrative acts have to be in accordance with natural jus- E tice if they have civil consequences. It was also held that natu- ral justice has various facets and acting fairly is one of them.

32Copy pinpoint32. In Kumaon Manda/ Vikas Nigam Ltd. vs. Girja Shankar Pant AIR 2001 SC 24, this Court held (vide para 2): F

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".

G (emphasis supplied)

33Copy pinpoint33. In the same decision it was also held following the decision of Tucker, LJ in Russell vs. Duke of Norfolk (1949) 1 All ER 109: .H

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A "The requirement 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".

34Copy pinpoint34. In Union of India etc. vs. Tulsiram Patel etc. AIR 1985 SC B 1416 (vide para 97) a Constitution Bench of this Court referred to with approval the following observations of Ormond, L.J. in Norwest Holst Ltd. vs. Secreta0; of State for TJ-ade (1978) 1, Ch. 201 : "The House of Lords and this court have repeatedly c emphasized that the ordinary principles of natural justice must be kept flexible and must be adapted to the circumstances prevailing in any particular case".

(emphasis supplied) Thus, it is well settled that the rules of natural justice are 0 flexible. The question to be asked in every case to determine whether ihe rules of natural justice have been viola Led is : have the authorities acted fairly?

35Copy pinpoint35. In Swadesh Cotton Mills etc. vs. Union of India etc. E AIR 1981 SC 818, this Court following the decision in Mohinder Singh Gill & Anr vs. The Chief Election Commissioner & Ors. AIR 1978 SC 851 held that the soul of the rule (natural justice) is fair play in action

36Copy pinpoint36. In our opinion, fair play required that the respondent should have communicated the 'good' entry of 1993-94 to the appellant so that he could have an opportunity of making a rep- resentation praying for upgrading the same so that he could be eligible for promotion. Non-communication of the said entry, in our opinion, was hence unrair on the part of the respondent and hence violative of natural justice.

37Copy pinpoint37. 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's case (supra) and K.L. Shephard's case (su-

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& ORS. [MARKANDEY KAT JU, J.] > pra), some more rules came to be added to the rules of natural justice, e.g. the requirement to give reasons vide S.N. Mukherji vs. Union of India AIR 1990 SC 1984. In Maneka Gandhi vs. Union of India (supra) (vide paragraphs 56 to 61) it was held that natural justice is part of Article 14 of the Constitution.

38Copy pinpoint38. Thus natural justice has an expanding content and is not stagnant. It is therefore open to the Court to develop new ' prif)ciples of natural justice in appropriate cases.· '-1

39: In the present case. we are developing the principles of natural justice by holding that fairness and transparency in c 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 repre- D sentation for its upgradation. This in our opinion is the correct. legal pc.>ition even though there may be no Rule/G.O. requiring communication of the entry, or even if there is a Rule/G.O. pro- hibiting it, because the principle of non-arbitrariness in State action as envisaged by Article 14 of the Constitution in our opin- ion requires such communication. Article 14 will override all E rules or government orders.

40Copy pinpoint40. We further hold that when the entry is communicated to him the pub\jc servant should have a right to make a representa- tion against the entry to the concerned authority, and the con- cerned authority must decide the representation in a fair manner and within a reasonable period. We also hold that the represen- tation 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 shte must ~e a model employer, and must act fairly towards its employees. Only then would good governance be possible.

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41Copy pinpoint41. We, however, make it clear that the above directions will not apply to military officers because the position for them is differ- ent as clarified by this Court in Union of India vs. Major Bahadur Singh 2006 (1) SCC 368. But they will apply to employees of statutory authorities, public sector corporations and other instru- B mentalities of the State (in addition to Government servants).

42Copy pinpoint42. In Canara Bank vs. II. K. Awasthy 2005 (6) SCC 321, 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: c "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 inan. Natural justice is the administration of justice in a common- sense liberal way. Justice is based substantially on natural D ideals and human values·.

43Copy pinpoint43. In para 12 of the said judgment it was observed: "What is meant by the term "principles of natural justice• · is not easy to determine. Lor~ Summer (then Hamilton, E L.J.) in R. v. Local Govt. Board (1914) 1 KB 160:83 LJKB 86 described the phrase as sadly lacking in precision. In General Council of Medical Education & Registration of . U.K. v. Spackman (1943) AC 627: (1943) 2 Ali ER 337, ·Lord Wright observed that it was not desirable to attempt F ·"to force it into a_ny Procrustean bed".

44Copy pinpoint44. Jn State ofMaharashtra vs. Public Concem fc?rGovemance Trust & Ors. 2007 (3) ~CC 587, it was observed (vide para 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 naturaljustice wou!d at once come into play". \.

45Copy pinpoint45. In our opinion, r.on-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 mili-

DEV oun v. UNION OF INDIA 193 & ORS. [MARKANDEY KATJU, J.] > · tary}, certainly has civil consequences because it may affect A his chances for promotion or get other benefits (as already dis- cussed above). Hence, such non-communication would bear- bitrary, and as such violative of Article 14 of the Constitution.

46Copy pinpoint46. In view of the above, we are of the opinion that both the learned Single Judge as well as the learned Division Bench B > 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. · · ·

47Copy pinpoint47. We are informed that the appellant has already retired c 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- 94 be communicated to the appellant forthwith and he should be permitted to make a representation against the same pray- 0 ing for its upgradation. If the upgradation is allowed, the appel- lant should be considered forthwith for promotion as Superin- tending 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. E · 48. We, therefore, direct that the 'good' entry be commu- ' nicated to the appellant within a period of two months from the . dale of receipt of the copy of this judgment. On being commu- ,. nicated, 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 con- sidered for promotion retrospectively by the Departmental Pro- motion 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. · '

49Copy pinpoint49. With these observations this appeal is allowed. No costs. Appeal allowed. H ' NJ