DEV DUTTversusUNION OF INDIA & ORS.

                          [2008] 8 S.C.R.174
                                                                      1
A                            DEV DUTT
                                  v:
                     UNION OF INDIA & ORS.
                    (Civil Appeal No.7631/2002)
                           MAY 12, 2008
B
          [H.K. SEMA AND MARKANDEY KAT JU, JJ.]

         Service law -Adverse entries, in Annual Confidentiai Re-
  port - Non-communication- Effect of - On facts, for promotion
c to the post of Superintending Engineer, bench mark 'very good'
  for last 5 years- Incumbent having only 'good' entry for 1993-
  94, thus; not considered for promotion - Challenge to, for non-
  communication of 'good' entry - Held: Every entry in ACR of
  every employee under the State, whether in civil, judicial, po-
  lice or other service (except military) must be communicated
D
  to him, within a reasonable period, to enable him to make rep-
  resentation against it and praying for its up-gradation - It is
  not that only adverse entry is to be communicated - In the
  factual situation 'good' entry is adverse entry because it elimi-
  nated the incumbent's chance from being considered for pro-
E motion - Rigours of entry is important and not phraseology -
  Non-communication of entry may affect his chances for pro-
  motion or get other benefits - Hence, non-communication of
  entry in A CR arbitrary, and violative of Article 14 - Constitu-
  tion of India, 1950 Article 14.
F
        The appellant-Executive Engineer was not found eli-
  gible for promotion to the post of Superintending Engi-
  n~er on completion of 5 years on the grade of Executive
  Engineer. However, his juniors were selected and pro-
  moted to the rank of Superintending Engineer. Appellant
G
  filed Writ Petition. Respondent contended that as per para
  6.3(ii) of the guidelines for promotion of departmental can-        •
  didates issued by Government of India, Ministry of Public
  Grievances and Pension, vide Office Memorandum dated
H                                174
               DEV DUTT v. UNION OF INDIA                  175
                        & ORS.

10.4.1989, for promotion to the post of Superintending A
Engineer, bench mark was 'very good' for last 5 years be-
fore DCP, and the appellant did not have 'very good' en-
try but only 'good' entry for the year 1993-94, thus, was
not considered for promotion. Appellant filed writ petition.
He contended that since he was not communicated the B
'good' entry for the year 1993-94, the rules of natural jus-
tice were violated. High Court dismissed the writ petition
as also the appeal. Hence the present appeal.
     Allowing the appeal, the Court
                                                                  c
     HELD: 1.1 It cannot be said that only an adverse entry
needs to be communicated to an employee. 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. [Paras 8 and 9) [182-G,H, 183-A]
                                                                  0
      1.2 The bench mark (i.e. t!le essential requirement)
laid down by the authorities for promotion to the post of
Superintending Engineer was that the candidate should
have 'very good' entry for the last five years. Thus, in this
situation the 'good' entry in fact is an adverse entry be- E
cause it eliminates the candidate from being considered
for promotion. The nomenclature is not relevant, it is the
effect which the entry is having which determines whether
it is an adverse entry or not. It is thus the rigours of the
entry which is important, not the phraseology. The grant F
of a 'good' entry is of no satisfaction to the incumbent if it
in fact makes him ineligible for promotion or has an ad-
verse effect on his chances.[Para 10) [183-8-D]
      1.3 The 'good' entry should have been communicated
to the appellant so as to enable him to make a representa- G
tion praying that the said entry for the year 1993-94 should
be upgraded from 'good' to 'very good'. After considering
such a representation it was open to the authority con-
cerned to reject the representation and confirm the 'good'
entry (though of course in a fair manner), but at least an H
    176      SUPREME COURT REPORTS                 [2008] 8 S.C.R.


A opportunity 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 the instant case. Hence, the
  non-communication of the 'good' entry was arbitrary and
B hence illegal. [Para 11] [183-D-F]

        Vijay Kumar vs. State of Maharashtra & Ors. 1988 (Supp)
    SCC 67 4; State of Gujarat & Anr vs. Suryakant Ch uni/a/ Shah
    1999 (1) sec 529 - distinguished.
c       1.4 The non-communication of an entry in the A.C.R.
  of a public servant is arbitrary because it deprives the con-
  cerned employee from making a representation against it
  and praying for its up-gradation. Every entry in the Annual
  Confidential Report of every employee under the State,
  whether he is in civil, judicial, police or other service (ex-
0
  cept the military) must be communicated to him, within a
  reasonable period, so as to enabl~ him to make a repre-
  sentation against it. 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
E employee's chances of promotion (or getting some other
  benefit), because when comparative merit is being consid-
  ered for promotion (or some other benefit) person having
  'good' or ·average' or 'fair' entry certainly has less chances
  of being selected than a person having a 'very good' or
F 'outstanding' entry. Moreover, object of writing the confi-
  dential report and making entries in them is to give an op-
  portunity to public servant to improve his performance.
  [Paras 13, 14 and 45] [184-C-F;G,H; 185-A-B]
G        Maneka Gandhi vs. Union of India & Anr AIR 1978 SC
    597; State of UP vs. Yamuna Shankar Misra 1997 (4) SCC 7
    referred to.
        1.5 No rule or government instruction can violate Ar-
  ticle 14 or any other provision of the Constitution, as the
H Constitution is the highest law of the land. If the Office Memo-
                       DEV DUTT v. UNION OF INDIA            \   177
                                & ORS.
    >
        randum dated 10/11.09.1987, is interpreted to mean that only A
        adverse entries (i.e. 'poor' entry) need to be communicated
        and not 'fair', 'average' or 'good' entries, it would become
        arbitrary (and hence illegal) since it may adversely affect the
        incumbent's chances of promotion, or get some other ben-
        efit. All similar Rules/Government Orders/Office Memoranda, B
        in respect of all services under the State, whether civil, judi-
•       cial, police, or other service (except the military), will hence
        also be illegal and are therefore liable to be ignored. [Paras
        12 and 17] [183-H; 184-A, 185-A, 184-8]
              1.6 Every entry in the A.C.R. of a public servant must c
        be communicated to him within a reasonable period,
        whether it is a poor, fair, average, good or very good en-
        try. This is because non-communication of such an entry
        may adversely affect the employee in two ways: (1) Had
        the entry been communicated to him he would know about D
        the assessmPnt of his work and conduct by his Sl'peri-
        ors, which would enable him to improve his work in tu-
        ture (2) He would have an opportunity of making a repre-
        sentation against the entry if he feels it is unjustified, and
        pray for its upgradation. Hence non-communication of E
        entry is arbitrary. Thus it is not only when there is 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, otherwise there is violation of the principle
        of fairness, which is the soul of natural justice. Even an F
        outstanding entry should be communicated since that
        would boost the morale of the employee and make him
        work harder. [Paras 19 and 20] [186-C-F]
             Maneka Gandhi vs. Union of India & Anr. AIR 1978 SC
        597; U. P Jal Nigam vs. Prabhat Chandra Jain AIR 1996 SC G
        1661; Bharat Petroleum Corporation Ltd. vs. N.R. Vairamani
        AIR 2004 SC 4778; Union of India & Anr. vs. S. K. Goel & Ors.
        AIR 2007 SC 1199 - referred to.
             1.7 The rules of natural justice are not codified nor
                                                                       H
    178      SUPREME COURT REPORTS                 [2008] 8 S.C.R.


A are they unvarying in all situations, rather they are flex-
  ible. They may, however, be summarized in one word: fair-
  ness. 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. The question to be asked
B in  every case to determine whether the rules of natural
  justice have been violated is: have the authorities acted
  fairly? [Paras 26 and 34] [188-D-E, 190-D]
        A.K. Kraipak & ors v Union of India & ors AIR 1970 SC
  150; K. I. Shephard & Ors. vs. Union of India & Ors. AIR 1988
c SC 686; Kumaon Manda/ Vikas Nigam Ltd. vs. Girja Shankar
  Pant AIR 2001 SC 24; Union of India etc. vs. Tulsiram Patel
  etc. AIR 1985 SC 1416; Swadesh Cotton Mills etc. vs. Union
  of India etc. AIR 1981 SC 818; Mohinder Singh Gill & Anr vs.
  The Chief Election Commissioner & Ors. AIR 1978 SC 851;
D S.N. Mukherji vs. Union of India AIR 1990 SC 1984; Maneka
  Gandhi vs. Union of India AIR 1978 SC 597 - referred to.
          Voinet vs. Barrett (1885) 55 L.J. QB 39; Russe// vs. Duke
    of Norfolk (1949) 1 All ER 109; Norwest Holst Ltd. vs. Secre-
    tary of State for Trade (1978) 1, Ch. 201 - referred to.
E
        1.8 The natural sense of what is right and wrong tells
  that it was wrong on the part of the respondent in not com-
  municating the 'good' entry to the appellant since he was
  thereby deprived of the right to make a representation
F 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.
  [Para 28] [188-F-G]
G
       1.9 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 representation praying for upgrading the same so that
H he could be eligible for promotion. Non-communication
                   DEV DUTT v. UNION OF INDIA                 179
                            & ORS.

    of the said entry, was hence unfair on the part of the re-      A
    spondent and hence, arbitrary and violative of natural jus-
    tice, because in substance the 'good' entry operates as
    an adverse entry. [paras 25 and 36] [190-F-G; 188-C-D]
          1.10 In the instant case, the principles of natural jus-
    tice are being developed by holding that fairness and 8
•   transparency in public administration requires that all
    entries (whether poor, fair, average, good or very good)
    in the ACR 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 C
    that he can make a representation for its upgradation. This
    is the correct legal position even though there may be no
    Rule/G.0. 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 D
    14 of the CC'nstitution requires such communicati,.,n. Ar-
    ticle 14 will override all rules or government orders. [Para
    39] [191-C-E]
          1.11 When the entry is communicated to him the pub-
    lic servant should have a right to make a representation E
    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. The representa-
    tion must be decided by an authority higher than the one
    who gave the entry, otherwise the likelihood is that the F
    representation will be summarily rejected without ad-
    equate consideration as it would be an appeal from Cae-
    sar 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 G
    employer, and must act fairly towards its employees. Only
    then would good governance be possible. The said di-
    rections would not apply to military officers because the
    position for them is different as clarified by this Court. But
    they will apply to employees of statutory authorities, public f-1
    180       SUPREME COURT REPORTS              [2008] 8 S.C.R.


A sector corporations and other instrumentalities of the
  State (in addition to Government servants). [Para 40 and
  41] [191-F-H; 192-A-B]
       Union of India vs. Major Bahadur Singh 2006 (1) SCC
  368; Canara Bank vs. V K. Awasthy 2005 (6) SCC 321; State
B of Maharashtra vs. Public Concern for Governance Trust &
  Ors. 2007 (3) SCC 587 - referred to.
          1.12 The appellant has already retired from service.
    However, if his representation for upgradation of the
c   'good' entry is allowed, he may benefit in his pension and
    get some arrears. Hence it is directed that the 'good' en-
    try of 1993-94 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 consid-
0
    ered forthwith for promotion as Superintending Engineer
    retrospectively dnd if he is promoted he will get the ben-
    efit of higher pension and the balance of arrears of pay
    along with 8% per annum interest. [Para 47] [193-C-E]
E        CIVILAPPELLATE JURISDICTION: Civil Appeal No. 7631
    of 2002
         From the final Judgment and Order dated 26.11.2001 of
    the Gauhati High Court in Writ Appeal No. 447 of 2001
F         M.T. George for the Appellant.
          Ashok Bhan, Rekha Pandey, D.S. Mahra and Anil Katiyar
    for the Respondents.
          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
                    DEV DUTT v. UNION OF INDIA                    181
>                  & ORS. [MARKANDEY KATJU, J.]

    21.8.2001.                                                          A
         2. Heard learned counsel for the parties and perused the
    record.
          3. 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.

         4. 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
           5. 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
    182       SUPREME COURT REPORTS                    [2008] 8 S.C.R.


A       6. 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.

        7. 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.
        8. 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
E 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
F         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.
          9. 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.

          10. 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
          11. 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.

         12. 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
    184       SUPREME COURT REPORTS                    [2008] 8 S.C.R.


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.

         13. 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.
        14. In our opinion, every entry (and not merely a poor or
  adverse entry) relating to an employee under the State or an
G 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
H employee's chances of promotion (or getting some other ben-
         I
                              DEV DUTT v. UNION OF INDIA                       185
     }                       & 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.

                   15. 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
                  16. 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
                    17. 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.
                   18. 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
    186       SUPREME COURT REPORTS                   (2008] 8 S.C.R.


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.

         19. 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.

          20. 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
F   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.
        21. Learned counsel for the respondent has relied on the
G 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
                      DEV DUTT v. UNION OF INDIA                   187
                     & 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".
            22. 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.
           23. 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
        188      SUPREME COURT REPORTS                    (2008] 8 S.C.R.


A       24. 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.

C             25. 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
              26. 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.

              27. 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."
 F         28. 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.
              29. A large number of decisions of this Court have discussed
    H
                     DEV DUTT v. UNION OF INDIA                       189
                    & 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.

         30. 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)
          31. 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.

        32. 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)
         33. 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
    190        SUPREME COURT REPORTS                    [2008] 8 S.C.R.


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".

          34. 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?
         35. 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
        36. In our opinion, fair play required that the respondent
F 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
G hence violative of natural justice.
          37. 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
H   in A.K. Kraipak's case (supra) and K.L. Shephard's case (su-
                        DEV DUTI v. UNION OF INDIA                     191
                       & ORS. [MARKANDEY KAT JU, J.]
    >   pra), some more rules came to be added to the rules of natural        A
        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.
               38. Thus natural justice has an expanding content and is       B
        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.
              40. 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.
    192         SUPREME COURT REPORTS                     [2008] 8 S.C.R.


A         41. 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).
          42. 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·.
           43. 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".
          44. 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".
                                                                              \.
           45. 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.
               46. 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.               ·            ·                    ·

               47. 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 F
           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 G
           should be given higher pension with arrears of pay and interest
          )@ 8% per annum till the date of payment. ·
    '
              49. With these observations this appeal is allowed. No costs.
                                                         Appeal allowed.
                                                                               H
    '    NJ