ANIL KUMARversusUNION OF INDIA AND ORS.

                        [2019] 2 S.C.R. 521                              521


                           ANIL KUMAR                                    A
                                  v.
                  UNION OF INDIA AND ORS.
                   (Civil Appeal No. 888 of 2019)
                        JANUARY 21, 2019                                 B
        [DR. DHANANJAYA Y CHANDRACHUD AND
                      HEMANT GUPTA, JJ.]
      CSIR Recruitment & Promotions Rules for Administrative Staff,
1982 – Claim for financial upgradation and promotion – Appellant
                                                                         C
was aggrieved by the rejection of his claim for financial upgradation
and promotion by the Council for Scientific and Industrial Research
(CSIR) – Appellant contended that the failure to communicate the
Annual Confidential Reports (ACRs) in which he had failed to meet
the benchmark violated the O.Ms issued by the Department of
Personnel and Training – CAT rejected the said contention and            D
upheld the rejection by the CSIR – Order of the CAT was affirmed
by the High Court – On appeal, held: Both the CAT and the High
Court were in error in coming to the conclusion that CSIR being an
autonomous entity and having adopted the O.Ms of the Department
of Personnel and Training with effect from a specified date, the
                                                                         E
appellant could not make a grievance of the non-communication of
the ACRs for the relevant period – In Dev Dutt v. Union of India &
Ors., it was held that fairness in public administration and
transparency require that all entries in the Annual Confidential
Reports (ACRs) of a public servant must be communicated within a
reasonable period in order to enable the employee to make a              F
representation for upgradation and a failure to communicate would
be arbitrary – In instant case, the failure to communicate the ACRs
deprived the appellant of the opportunity to submit his representation
in the matter of financial upgradation – Subsequently, appellant
was furnished with opportunity to submit his representation for
                                                                         G
regular promotion, but it was not considered – CSIR being an
autonomous body do have certain administrative privileges, but it
cannot claim a privilege not to comply with the judgment of the
Supreme Court – CSIR was bound to follow the principles laid down
in Dev Dutt’s case – Thus, appellant granted an opportunity to submit
his representation in respect of the ACRs for the concerned years        H
                                   521
522            SUPREME COURT REPORTS                      [2019] 2 S.C.R.


A     where he did not fulfil the benchmark for financial upgradation –
      Service Law.
            Council for Scientific and Industrial Research (CSIR)
      notified the eligibility of the appellant for grant of financial
      upgradation with effect from 10 May 2011. However, the name of
B     the appellant did not appear in the list of officers for financial
      upgradation. The ACRs of the appellant were below the
      benchmark required for certain years namely 2003-2004, 2008-
      2009 and 2009-2010. The gradings were communicated to the
      appellant on 9 July 2014 to which he submitted a representation
      for regular promotion, but it was not considered. The appellant
C     was neither granted a financial upgradation nor was he promoted
      as a part of the exercise of regular promotion to the higher post.
      Central Administrative Tribunal did not find any substance in the
      appellant’s grievance. Writ petition filed by the appellant before
      the High Court was also rejected. Hence, the present Appeal.
D           Allowing the appeal, the Court
            HELD: 1. In Dev Dutt vs. Union of India & Ors. a two
      Judge Bench of this Court held that fairness in public
      administration and transparency require that all entries in the
      Annual Confidential Reports of a public servant must be
E     communicated within a reasonable period in order to enable the
      employee to make a representation for upgradation. The view of
      the Court was that non-communication of entries in the ACRs
      has civil consequences since it may affect the chances of the
      employee for promotion and other benefits. A failure to
F     communicate would be arbitrary. This Court held that these
      directions would apply to employees of statutory authorities, public
      sector corporations and other instrumentalities of the State, in
      addition to government servants. [Para 13] [526-B-D]
            2. A three Judge Bench of this Court has in Sukhdev Singh
      vs. Union of India & Ors. affirmed the correctness of the view
G
      taken in Dev Dutt noting that an earlier three Judge Bench in
      Abhijit Ghosh Dastidar vs. Union of India & Ors. had adopted
      the same principle. [Para 14] [526-D-E]


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        ANIL KUMAR v. UNION OF INDIA AND ORS.                          523


       3. In view of the Supreme Court judgments, both the             A
Tribunal and the High Court were in error in coming to the
conclusion that CSIR being an autonomous entity and having
adopted the O.Ms of the Department of Personnel and Training
with effect from a specified date, the appellant could not make a
grievance of the non-communication of the ACRs for the relevant
                                                                       B
period. [Para 16] [527-B]
       4. The failure to communicate the ACRs deprived the
appellant of the opportunity to submit his representation in the
matter of financial upgradation. Subsequently, the appellant was
furnished with an opportunity to submit his representation before
his case was taken up for regular promotion, but his representation    C
was not considered. [Para 17] [527-C]
       5. The appellant did not have the benefit of submitting his
representation when the Screening Committee took up the case
for financial upgradation. CSIR by reason of its autonomy may
have certain administrative privileges. No authority can,              D
however, claim a privilege not to comply with a judgment of this
Court. Once the law was enunciated in Dev Dutt’s case, all
instrumentalities of the State were bound to follow the principles
laid down by this Court. CSIR was no exception. [Para 18]
[527-D-E]
                                                                       E
       6. The appellant has since retired from service on 30
September 2014. The grant of MACP benefit is not a matter of
right and it is after the Screening Committee finds that the officer
meets the benchmark that an upgradation can be granted. Hence,
this Court is of the view that the appellant should be granted an
opportunity, to submit his representation in respect of the ACRs       F
for the concerned years where he did not fulfil the benchmark for
financial upgradation. Upon the submission of his representation,
the respondents shall consider it and communicate the outcome
to the appellant. Based on that decision, the case of the appellant
for financial upgradation shall be considered afresh. In the event
                                                                       G
his ACRs for the relevant period are upgraded, the case for
financial upgradation shall be further determined and the case of
the appellant for promotion to the post of Senior Deputy Secretary/
Controller of Administration shall be considered afresh by the
Departmental Promotion Committee expeditiously. [Paras 19, 20,
21 and 22] [527-F-H; 528-A-B]                                          H
524             SUPREME COURT REPORTS                          [2019] 2 S.C.R.


A             Dev Dutt v. Union of India & Ors. (2008) 8 SCC
              725 : [2008] 8 SCR 174 ; Sukhdev Singh v. Union of
              India (2013) 9 SCC 566 : [2013] 5 SCR 1004 : Abhijit
              Ghosh Dastidar v. Union of India & Ors. (2009) 16
              SCC 146 – relied on.
B                                 Case Law Reference
              [2008] 8 SCR 174             relied on              Para 13
              [2013] 5 SCR 1004            relied on              Para 14
              (2009) 16 SCC 146            relied on              Para 14
C             CIVIL APPELLATE JURISDICTION : Civil Appeal No.888 of
      2019.
            From the Judgment and Order dated 13.07.2016 of the High Court
      of Punjab and Haryana at Chandigarh in CWP No.13390 of 2016.
            D.N. Goburdhun, Prashant Chaudhary, R.K. Singh, Syed Jafar
D
      Hussain, Advs. for the Appellant.
           Jayesh K. Unnikrishnan, Vijay Pratap Singh, Advs. for the
      Respondents.
              The Judgment of the Court was delivered by
E             DR. DHANANJAYA Y. CHANDRACHUD, J.
              1. Leave granted.
             2. The appellant was aggrieved by the rejection of his claim for
      financial upgradation by the Council for Scientific and Industrial Research
F     (“CSIR”) with effect from 10 May 2011. He was also aggrieved by not
      being promoted to the post of Senior Controller of Administration / Senior
      Deputy Secretary in Pay Band-4 i.e. Rs.37,400 – 67,000 with a grade
      pay of Rs. 8700 in respect of vacancies for 2013-2014 under the CSIR
      Recruitment & Promotion Rules for Administrative Staff, 1982.
            3. He moved the Central Administrative Tribunal, Chandigarh.
G
      The Tribunal did not find any substance in his grievance for the reason
      that he did not fulfil the benchmark of “Very Good” for financial
      upgradation. The Tribunal was of the view that CSIR is an autonomous
      body and that the circulars issued by the Union of India would not ipso
      facto apply.
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         ANIL KUMAR v. UNION OF INDIA AND ORS.                                   525
          [DR. DHANANJAYA Y. CHANDRACHUD, J.]

      4. The grievance of the appellant was that the failure to                  A
communicate the Annual Confidential Reports in which he had failed to
meet the benchmark violated the O.Ms issued by the Department of
Personnel and Training.
       5. The Tribunal rejected that contention holding that since CSIR
had adopted the requirement of conveying the ACRs from a particular              B
date in the future, the decision could not be questioned. On the issue of
promotion, it has been held that this involved a selection on the basis of
performance in service and in the interview and since the Departmental
Promotion Committee had graded the appellant as “good”, he was not
considered for promotion. This view of the Central Administrative Tribunal
was challenged before the High Court of Punjab and Haryana.                      C

      6. By a judgment dated 13 July 2006, the writ petition filed by the
appellant was dismissed.
        7. The first grievance of the appellant was that he was entitled to
financial upgradation under the MACP scheme adopted by CSIR. It is               D
not in dispute that the benchmark prescribed was “Very Good” for financial
upgradation to the grade pay of Rs. 7600/- and above. CSIR, by its
letter dated 30 December 2013, notified the eligibility of the appellant for
the grant of financial upgradation with effect from 10 May 2011. Similarly,
by its circular dated 6 February 2014, CSIR issued an All India Final
Seniority List of Common Cadre Officers as on 1 January 2014. The                E
name of the appellant stood at Serial No. 2 in the category of Deputy
Secretary/Controller of Administration.
      8. On 9 May 2014, CSIR declared the result of the exercise
conducted by the Screening Committee which met on 21 April 2014.
The name of the appellant did not appear in the list of officers for financial   F
upgradation from 10 May 2011.
       9. The ACRs of the appellant were below the benchmark required
for certain years namely 2003-2004, 2008-2009 and 2009-2010.
       10. The gradings were eventually communicated to the appellant
                                                                                 G
on 9 July 2014 to which he submitted a representation and appeared for
the interview for regular promotion for 2013-2014. The grievance is that
the representation was not considered.When the panel for the post of
Senior Deputy Secretary/Senior Controller of Administration for 2013-
2014 was notified, officers junior to the appellant were empaneled for
promotion.                                                                       H
526             SUPREME COURT REPORTS                           [2019] 2 S.C.R.


A           11. The appellant was neither granted a financial upgradation nor
      was he promoted as a part of the exercise of regular promotion to the
      higher post.
            12. The High Court affirmed the view of the Tribunal and rejected
      the writ petition filed by the appellant.
B             13. In Dev Dutt vs. Union of India & Ors.1 a two Judge Bench
      of this Court held that fairness in public administration and transparency
      require that all entries in the Annual Confidential Reports of a public
      servant must be communicated within a reasonable period in order to
      enable the employee to make a representation for upgradation. The
C     view of the Court was that non-communication of entries in the ACRs
      has civil consequences since it may affect the chances of the employee
      for promotion and other benefits. A failure to communicate would be
      arbitrary. This Court held that these directions would apply to employees
      of statutory authorities, public sector corporations and other
      instrumentalities of the State, in addition to government servants.
D
             14. A three Judge Bench of this Court has in Sukhdev Singh vs.
      Union of India & Ors.2 affirmed the correctness of the view taken in
      Dev Dutt (supra) noting that an earlier three Judge Bench in Abhijit
      Ghosh Dastidar vs. Union of India & Ors.3 had adopted the same
      principle.
E
             15. The three Judge Bench in Sukhdev Singh (supra), held thus:
             “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
F            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
G            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
      1
        (2008) 8 SCC 725
      2
        (2013) 9 SCC 566
H     3
        (2009) 16 SCC 146
          ANIL KUMAR v. UNION OF INDIA AND ORS.                               527
           [DR. DHANANJAYA Y. CHANDRACHUD, J.]

        natural justice. We, accordingly, hold that every entry in ACR -      A
        poor, fair, average, good or very good - must be communicated to
        him/her within a reasonable period.”
      16. In view of the above statement of law, both the Tribunal and
the High Court were in error in coming to the conclusion that CSIR
being an autonomous entity and having adopted the O.Ms of the                 B
Department of Personnel and Training with effect from a specified date,
the appellant could not make a grievance of the non-communication of
the ACRs for the relevant period.
       17. The failure to communicate the ACRs deprived the appellant
of the opportunity to submit his representation in the matter of financial    C
upgradation. Subsequently, the appellant was furnished with an
opportunity to submit his representation before his case was taken up
for regular promotion, but his representation was not considered.
        18. The appellant did not have the benefit of submitting his
representation when the Screening Committee took up the case for              D
financial upgradation. CSIR by reason of its autonomy may have certain
administrative privileges. No authority can, however, claim a privilege
not to comply with a judgment of this Court. Once the law was enunciated
in Dev Dutt’s case (supra), all instrumentalities of the State were bound
to follow the principles laid down by this Court. CSIR was no exception.
                                                                              E
        19. The appellant has since retired from service on 30 September
2014.
        20. The grant of MACP benefit is not a matter of right and it is
after the Screening Committee finds that the officer meets the benchmark
that an upgradation can be granted.                                           F
      21. Hence, we are of the view that the appellant should be granted
an opportunity, within a period of four weeks from today to submit his
representation in respect of the ACRs for the concerned years where
he did not fulfil the benchmark for financial upgradation. Upon the
submission of his representation, the respondents shall consider it and
                                                                              G
communicate the outcome to the appellant within a period of two months
thereafter. Based on that decision, the case of the appellant for financial
upgradation shall be considered afresh. In the event his ACRs for the
relevant period are upgraded, the case for financial upgradation shall
be determined within a period of three months thereafter.
                                                                              H
528                SUPREME COURT REPORTS                      [2019] 2 S.C.R.


A           22. We also direct that in the event that the ACRs for the relevant
      period are upgraded, the case of the appellant for promotion to the post
      of Senior Deputy Secretary/Controller of Administration shall be
      considered afresh by the Departmental Promotion Committee
      expeditiously. This exercise shall be carried out with reference to the
      date on which his junior in service came to be promoted.
B
             23. In the event that the case of the appellant is considered
      favourably, he would be entitled to all consequential benefits which flow
      from the financial upgradation and upon the grant of regular promotion
      to the post of Senior Deputy Secretary.
C          24. The appeal is, accordingly, allowed and the judgment of the
      High Court shall stand set aside.
            25. Pending application(s), if any, shall stand disposed of.
            26. No order as to costs.

D
      Ankit Gyan                                                  Appeal allowed.




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