SAROJ KUMARversusUNION OF INDIA AND OTHERS

                    [2015]9S.C.R.171


                     SAROJKUMAR                              A
                             v.
              UNION OF INDIAAND OTHERS
              (Civil Appeal No. 6081 of2015)
                                                             B
                    AUGUST 18, 2015
     [DIPAK MISRA AND PRAFULLA C. PANT, JJ.]

      Service Law - Promotion - Denial of- On the basis of
 uncommunicated remarks in the ACRs -After direction of      c
court in the first round of litigation, ACRs communicated to
 the employee - Subsequent thereto representation of the
employee rejected - After the direction of the court in the
 second round of litigation, representation of the employee
again rejected after reconsideration t/:Jereof - In the third D
round !present litigation, Tribunal directed the authorities
concerned to reconsider the case of the employee from the
date his juniors were promoted - High Court set aside the
order of Tribunal- On appeal, held: In the present case, not
only the ACRs have been communicated to the employee, E
his representation too had been rejected - Therefore, after
communication of the ACRs and rejection of the
representation, Tribunal was not correct in directing to
reconsider the promotion of the employee from the date his
juniors were promoted, having treated the remarks as F
uncommunicated.
  Dev Dutt v. Union of India and Ors. (2008) 8 SCC 725:
   2008 (8) SCR 174; Abhijit Ghosh Dastidarv. Union of
  India and Ors. (2009) 16 SCC 146; Sukhdev Singh v.         G
  Union oflndia (2013) 9 SCC 566: 2013 (5) SCR 1004
  - held inapplicable.
                    Casa Law Reference
2008 (8) SCR 174           held inapplicable.       Para 8   H
                           171
172         SUPREME COURT REPORTS                 [2015] 9 S.C.R.


A     (2009) 16 sec 146           held inapplicable        Para 8
      2013 (5) SCR 1004           held inapplicable        Para 8


          CIVIL APPELLATE JURISDICTION : Civil Appeal No.
B     6081 of2015                                  ·

           From the Judgment and Order dated 27.02.2014 of the ·
      High Court of Judicature at Allahabad in Writ Appeal No. 50733
      of2012
c           K. Radhakrishnan,Ajay Singh and Vivek Narayan Sharma
      for the Appellant.

           Tushar Mehta,ASG, Sunil Mathews, Mukesh Verma and
      B.V. Bairam Das forthe Respondents.
D
          The Judgment of the Court was delivered by

          PRAFULLA C. PANT, J. 1. This appeal is directed
   against judgment and order dated 27.2.2014, passed by the
E High Court of Judicature at Allahabad in Writ-A No. 50733 of
   2012 whereby the High Court has allowed the petition and set
   aside the order dated 16.1.2012 passed by the Central
   Administrative Tribunal, Allahabad Berich (for short "the
   Tribunal") in Original Application (OA) No. 658 of 2011. By
F said order the Tribunal (CAT) had directed that the claim by
   the appellant Saroj Kumar for promotion be considered
   ignoring earlier uncommunicated entries of Annual Confidential
   Reports (ACRs). The controversy in the present case relates
   to the downgrading AC Rs of the appellant without giving him
G any opportunity, which were later comm4nicated and
 . representation made by the appellant was also considered
   and rejected.

      2. We have heard learned counsel for the parties and
H perused the papers on record. ·
      SAROJ KUMAR v. UNION OF INDIAAND OTHERS                        173
               [PRAFULLA C. PANT, J.]

     3. Succinctly stated, the facts are that the appellant Saroj A
Kumar was selected through Civil Service Examination, 1985,
and was allotted Indian Defence Accounts Service (for short
"IDAS"). On 29.1.1996 he was promoted as Junior
Administrative Officer with effect from 12.1.1996. He was
promoted in the pay scale of Rs.14200-18200 vide order dated B
10.11.2000 and was given Selection Grade with effect from
5.5.2000. Later, on 14.6.2004 he was posted as Joint
Controller of Defence Accounts, Jabalpur (M.P.). A DPC was
convened for promotion in the Senior Administrative Grade
on 10.5.2006. It is pleaded by the appellant that to his utter C
shock, ignoring him, juniors to him were promoted.

      4. Having aggrieved with the denial of promotion, the
appellant, in the first round of litigation, filed OA No. 640 of
2006 before CAT, Allahabad Bench, challenging the                    D
proceedings of the DPC, and granting promotion to the junior
officers. The Tribunal, vide order dated 18.9.2008, disposed
of the OA remitting the. matter back to the respondent authorities
for communication of annual confidential reports and to
consider the case of the appellant afresh, keeping in mind the       E
law laid down by the Apex Court in Dev Duttv. Union of India
and others 1. In response to said order, the appellant was
communicated the annual confidentia.1 reports and he submitted
representation on 29.7.2009 to the respondent authorities            F
pleading that in Abhijit Ghosh Dastidar v. Union of India
and others2 it has been held that if a grading falling below the
benchmark, has not been communicated to the concerned
employee, it has to be ignored while considering the promotion
of such employee. However, vide order dated 22.1.2010, the           G
respondent authorities rejected the representation against
downgrading of remarks by Reviewing Authority and upheld
theACRs for the period 1999-2000, 21.6.2000 to 31.3.2001
1
    c2ooa) a sec 725
2 c2oos) 15 sec 146                                                  H
174         SUPREME COURT REPORTS                  [2015] 9 S.C.R.


A     and 1.4.2001 to 31.3.2002, which, according to the appellant,
      should have been treated uncommunicated.

           5. As such, in the second round the appellant filed OA No.
     490 of 2010 before the Tribunal challenging the rejection of
 B the representation by the respondent authorities. The Tribunal
     was pleased to allow the OA vide order dated 27.4.2010 and ·
     set aside the order dated 22.1.2010 and once again remitted
   . the matter back to the respondent authorities for
     reconsideration of the representation of the appellant.
 C Aggrieved by the same, the respondent authorities filed Civil
     Miscellaneous Writ Petition No. 8357 of2011 before Allahabad
     High Court, which was dismissed on 21.2.2011. ·while
     dismissing the writ petition, the High Court observed that
     alleged downgrading of the AC Rs of the appellant by the then
 D Reviewing Authority (against the grading recorded by the
     Assessing Officer and the Reporting Officer) was without any
     material available on record. The High Court further observed
     that the decision of the competent authority is simply reiteration
    of d0wngrading of the three entries by the Reviewing Officer,
'E by observing that the Reviewing Officer has downgraded the
     entries consciously based on work parameters. It further
     observed that ifthe complaints were there, the same should
     have been mentioned while downgrading the entries. The
 F respondents, vide order dated 23.3.2011, after considering
    the matter afresh, again found no substance in the
    representation and rejected the same.

       6. In the third round, appellant filed OA No. 658 of 2011
  before the Tribunal challenging the order dated 23.3.2011,
G passed by the authorities. Said QA was als9 allowed by the
  Tribunal on 16.1.2012, and the order dated 23.3.2011 was
  set aside with further direction to the respondent to reconstitute
  the Review DPC and reconsider the case of the appellant.
H Aggrieved by said order of the Tribunal, the respondents filed
        SAROJ KUMAR v. UNION OF INDIAAND OTHERS                       175
                 [PRAFULLA C. PANT, J.]

     Writ-A No. 50733 of 2012, which is allowed vide impugned         A
     order challenged before us.

         7. On behalf of respondent No. 4, Deputy Controller of
     Defence Accounts has filed its counter affidavit. Relevant
     paragraphs of the same are reproduced below: -             B
       "7. The Hon'ble High Court, by the impugned judgment
       and order held that the issue in the present case is not
       with regard to considering the claim of the petitioner
       ignoring the uncommunicated entries, and there is no           c
       such prayer in the 0 .A. filed by the petitioner nor has the
       Hon'ble Tnbunal directed the reconsideration of the claim
       of the petitioner for promotion ignoring the
       uncommunicated entries through review DPC;
       subsequent to the first order of the Hon'ble Tribunal, the     D
       uncommunicated entries were made available·to the
       petitioner and he made a representation against the
       entries; this representation was rejected, leading to the
       filing of another OA490/2010 by the petitioner, wherein
       the Hon'ble Tribunal held that the order on representation     E
       was not a reasoned order and directed reconsideration
       of the representation in the light of law laid down by this
       Hon'ble Court in Dev Dutt vs. Union of India & Ors. (2008)
       8 SCC 725; W.P. 8357/2011 filed thereafter was
       dismissed by the Hon'ble High Court by order dated             F
       21.2.2011 holding that the complaints which led to the
       downgrading of the ACRs of the petitioner and the
       reasons for relying on the complaints have not been
       recorded in the order rejecting the representation; ifthe
       petitioner wanted his claim for promotion considered           G.
       ignoring the uncommunicated ACRs, he should have
.)
       challenged the order of the Hon'ble Tribunal dated
       27.4.2010 in O.A. 490/2010 and that of the Hon'ble High
       Court dated 21.2.2011inW.P.8357/2011; the Hon'ble
                                                                      H
176       SUPREME COURT REPORTS                     [2015] 9 S.C.R.


A     Tribunal, by order dated 16.1.2012 in O.A. 658/2011 has
      not recorded any reasons for disagreeing with the
      conclusions drawn by the competent authority in its
      detailed order supported by reasons. The Hon'ble High
      Court thus remanded the matter back to the Hon'ble
B     Tribunal to examine the merits of the order rejecting the
      representation of the petitioner."

        xxx                       xxx                    xxx
c     "9. ·It is strongly denied that the adverse entries remained
      uncommunica~ed because of active concealment by the
      respondents resulting in violation of fundamental rights
      of the petitioner and the principles of natural justice. It is
      submitted that as per DOPT OM dated 11 .5 .1990,
D     communication was mandatory only in cases were
      adverse entry was made in the ACR. Since the gradings
      in the relevant AC Rs of the petitioner were not adverse·
      but below bench mark, they were not communicated to
      him. However, during the pendencyofthefirstofthe OAs
E     filed by the petitioner, O.A. 64012006, this Hon'ble Court
      rendered judgment in Dev Dutt vs. Union of India & Ors.
      (2008) 8 SCC 725. In view of the law laid down in Dev
      Dutt's case, the Hon'ble Triobunal, by order dated
      18.9.2008 in O.A. 64012006, directed the authorities to
F     reconsider the case of the petitioner. In compliance of
      the order of the Hon'ble Tribunal in O.A. 64012006, the
      confidential reports for the relevant period 1999-2000, ·
      21.6.2000 - 31.3.2001 and 2001-2002 were made
      available to the petitioner, and his representation was
G     considered by the competent authority."

        xxx                      xxx                    xxx            l




      "11. It is respectfully submitted that the directions
H     contained in paras 43 and 44 of thia Hon'ble Court in
         SAROJ KUMAR v. UNION OF INDIAAND OTHERS                           177
                  [PRAFULLA C. PANT, J.]

        Dev Dutt's case that the below bench mark entry be                 A
        communicated to the employee and his representation
        be decided, and the directions in para 37 "the
        representation must be decided by an authority higher
        than the one who gave the entry, otherwise the likelihood
        is that the representation will be summarily rejected              B
        without adequate consideration ...... " have been followed
        in letter and spirit. The AC Rs of the petitioner were written
        by the PCDA/CDAas reporting officer, reviewed by the
        PCDA (Pensions)/Addl. CGDA accepted by CGDA. The
        representations of the petitioner have been considered             c
        by higher authority, namely, two different Secretaries
        (Defence Finance) and speaking orders issued. Since
        there is no upgradation of below bench mark gradings,
        there is no necessity for holding review DPC.;,
                                                                           D
          )()()(                    )()()(                 )()()(


       "13. The Hon'ble High Court has correctly found that the
       below bench mark entries were communicated to the
       petitioner as per the directions of the Hon'ble Tribunal            E
       and Hon'ble High Court, and the issue that remains is
       not with respect to non-communication of entries but with
       regard to whether the representation of the petitioner has
       been considered objectively and order passed stating
       the complaints received and giving reasons for relying              F
       on the said complaints for downgrading the entries."

           8. From the above paragraphs of the counter affidavit it is
     clear that after first round of litigation i.e. OA No. 640 of 2006,
     concluded vide order dated 18.9.2008, passed by the Tribunal,         G


..   communication of the entries, due to which the appellant's
     promotion was affected, was made and representation was
     submitted by the appellant on 12.6.2009. It is also clear from
     the record that the representation of the appellant was rejected


-    vide order dated 22.1.2010. Consequent to subsequent                  H
178             SUPREME COURT REPORTS               [2015] 9 S.C.R.


A direction of the Tribunal in second round oflitigation, as affirmed
  by the High Court in Civil Miscellaneous Writ Petition No. 8357
  of 2011, the matter has been reconsidered and rejected. In
  the above circumstances, after communication of the entries
  made to the appellant and subsequent rejection of the
B representation, now, the law laid down in the cases of Dev
  Dutt v. Union of India (supra), Abhijit Ghosh Dastidar. v.
  Union of India and others (supra), and Sukhdev Singh v.
  Union of lndia3 , is of little help to the present appellant for the
  reason that in the present case not only the AC Rs have been
C communicated to the appellant, his representation too has
  been rejected.

        9. In our opinion, the High Court has rightly taken note of
  the fact that on conclusion of second round of litigation neither
D there was direction by the Tribunal nor by the High Court to
  ignore the entries in question (after rejection of the
  representation against it) for promotion of the appellant from
  the date when his juniors were promoted. In the present round,
  the Tribunal has erred in directing the authorities to consider
E the case of the appellant for promotion from the date when his
  juniors were promoted, ignoring the remarks, which had been
  communicated after first round of litigation. We are in
  agreement with the High Court that after theACRs have been
  communicated and representation has been rejected, the
F Tribunal should not have treated the remarks uncommunicated.

          10.     Therefore, we do not find any error in the
      impugned order passed by the High Court.

G             11.   Accordingly the appeal is dismissed. There
      shall be no order as to costs.

      Kalpana K. Tripathy                            Appeal dismissed.   -
H
                                                                         -
      3
          (2013) 9 sec 566