Supreme Court of India
SUKHDEV SINGHversusUNION OF INDIA AND ORS.
- Citation
- 2013 INSC 275
- Decided
- 23 April 2013
- Disposal
- Disposed off
Holding
Every entry in the ACR of a public servant (other than military) must be communicated to the servant within a reasonable period; failure to do so is arbitrary and violates Article 14.
Summary
The appellant, Sukhdev Singh, a Deputy Director of Training, had consistently received "Outstanding" or "Very Good" remarks in his Annual Confidential Reports (ACR) but was downgraded to "Good" for the years 2000‑2001 and 2001‑2002. He contended that the downgrade, being an adverse entry, should have been communicated to him as required by service rules and principles of natural justice. The Court examined earlier decisions, notably U.P. Jal Nigam and Major Bahadur Singh, and held that the view in Dev Dutt (that every ACR entry, irrespective of its rating, must be communicated within a reasonable period) is legally sound. Non‑communication was declared arbitrary and violative of Article 14 of the Constitution. Consequently, the Court affirmed that each ACR entry must be communicated and that the appellant may seek retrospective promotion, but the appeal was disposed of without any order as to costs.
Issues considered
- Whether every entry in the Annual Confidential Report of a public servant, irrespective of its nature, must be communicated to the servant within a reasonable period.
- Whether non‑communication of an ACR entry violates Article 14 and the principles of natural justice.
- Whether the earlier judgments in U.P. Jal Nigam and Major Bahadur Singh are to be overruled or limited in application.
Subjects
Annual Confidential Reportcommunication of ACRnatural justiceArticle 14adverse entrypromotionservice lawpublic servantnon‑communicationfairness
Judgment
[2013] 5 S.C.R. 1004
A SUKHDEV SINGH
·v.
UNION OF INDIA AND ORS.
(Civil Appeal No.5892 of 2006)
APRIL 23, 2013
B
[R.M. LODHA, MADAN B. LOKUR AND KURIAN
JOSEPH, JJ.]
Service Law:
C Annual Confidential Repot (ACR) - Communication of
the entry therein - To the Public servant (other than military
service) - Matter refeffed by Division Bench of Supreme court
to Three Judge Bench, finding inconsistency as regards the
law laid down on the issue, by the judgments passed in *U.P.
D Jal Nigam case and **Major Bahadur Singh case -
Subsequently, Supreme Court, in ***Dev Dutt case held that
every entry in ACR of a public servant must be communicated
to him/her within a reasonable period - Held: The view taken
in Dev Dutt case is leal/y sound and thus approved -
E Therefore, every entry in ACR whether it be poor, fair,
average, good or very good, must be communicated to the
public servant within a reasonable period.
***Dev Dutt vs. Union of India and Ors. (2008) 8 SCC
725: 2008 (8) SCR 174 - approved.
F Abhijit Ghosh Dastidar vs. Union of India and Ors. (2009)
16 sec 146 - relied on.
Satya Narain Shukla vs. Union of India and Ors. 2006
(9) SC 69: 2006 (2) Suppl. SCR 275; K.M. Misra vs. Central
Bank of India and Ors. 2008 (9) SCC 120: 2008 (13) SCR
G 534 - disapproved.
*U.P. Jal Nigam and others vs. Prabhat Chandra Jain
and Ors. 1996 (2) SCC 363: 1996 (1) SCR 1118; **Union of
India and Anr. vs. Major Bahadur Singh (2006) 1 SCC 368:
H 1004
SUKHOEV SINGH v. UNION OF INDIA 1005
2005 (5) Suppl. SCR 385; A.K. Praipak vs. Union of India A
(1969) 2 sec 262: 1970 (1) SCR 457; Maneka Gandhi vs.
Union of /ndia.(1978) 1 sec 248: 1978 (2) SCR 621; Union
of India vs. Tutsi Ram Patel (1985) 3 SCC 398: 1985 (2)
Suppl. SCR 131; Canara Bank vs. V.K. Awasthy (2005) 6
sec 321 : 2005 (3) SCR 81; State of Maharashtra vs. Public B
Concern for Governance Trust (2007) 3 SCC 587: 2007 (1)
SCR 87 - referred to.
Case Law Reference:
1996 (1) SCR 1118 referred to Para 1
c
2005 (5) Suppl. SCR 385 referred to . Para 1
2008 (8) SCR 174 approved Para 3
1970 (1) SCR 457 referred to Para 3
1978 (2) SCR 621 referred to Para 3
D
1985 (2) Suppl. SeR 131 referred to Para l
2005 (3) SCR 81 referred to Para 3
2007 (1) SCR 87 referred to Pa:-a 3
(2009) 16 sec 146 relied on Para 7
E
2006 (2) Suppl. SeR 275 disapproved Para 9
2008 (13) SCR 534 disapproved Para 9
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
5892 of 2006.
From the Judgment & Order dated 04.07.2005 of the High F
Court of Punjab and Haryana in CWP No. 6620 CAT of 2003.
Ansar Ahmad Chaudhary for the Appellant.
Mohan Parasaran, SG, D.L. Chidananda, Asha G Nair,
S.N. Terdal, Harinder Mohan Singh, Shabana for the G
Respondents.
The following order of the Court was delivered
ORDER
1. While granting leave on December 12, 2006, a two
Judge Bench (S.B. Sinha and Markandey Katju, JJ.) felt that H
1006 SUPREME COURT REPORTS [2013) 5 S.C.R.
A there was inconsistency in the decisions of this Court in U.P.
Jal Nigam and others vs. Prabhat Chandra Jain and others1 ,
and Union of India and another vs. Major Bahadur Singh2 and
consequently, opined that the matter should be heard by a
larger Bench. This is how the matter has come up for
B consideration before us.
2. The referral order dated December 12, 2006 reads as
follows:
"The appellant herein was appointed as Deputy Director
of Training on or about 13.11.1992. He attended a training
C programme on Computer Applied Technology. He was
sent on deputation on various occasions in 1997, 1998 and
yet again in 2000. Indisputably, remarks in his Annual
Confidential Reports throughout had been "Outstanding" or
'Very good". He, however, in two years i.e. 2000-2001 and
D 2001-2002 obtained only "Good" remark in his Annual
Confidential Report. The effect of such a downgrading falls
for our consideration. The Union of India issued a Office
Memorandum on 8.2.2002 wherein the Bench mark for
promotion was directed to be "Very Good"in terms of
E clause 3.2 thereof. It is also not in dispute that Guidelines
for the Departmental Promotion Committees had been
issued by the Union of India wherein, inter alia, it was
directed as follows:
"..... 6.2.1 (b) The DPC should assess the suitability ·
F of the employees for promotion on the basis of their
Service Records and with particular reference to the CRs
for five preceding years irrespective of the qualifying
service prescribed in the Service/Recruitment Rules. The
'preceding five years' for the aforesaid purpose shall be
G decided as per the guidelines contained in the DoP & T
O.M No.22011/9/98-Estt.(D), dated 8.9.1998, which
prescribe the Model Calendar for DPC read with OM of
even number, dated 16.6.2000.(lf more than one CR have
1. (1996) 2 sec 363.
H 2. (2006) 1 sec 368.
SUKHDEV SINGH v. UNION OF INDIA 1007
been written for a particular year, all the CRs for the A
relevant years shall be considered together as the CR for
one year},"
The question as to whether such a downgradation of
Annual Confidential Report would amount to adverse remark
and thus it would be required to be communicated or not fell B
for consideration before this Court in U.P. Jal Nigam and Ors.
Vs. Prabhat Chandra Jain and Ors. - (1996) 2 SCC 363 in
the following terms:
" We need to explain these observations of the High
Court. The Nigam has rules, whereunder an adverse entry C
is required to be communicated to the employee
concerned, but not downgrading of an entry. It has been
urged on behalf of the Nigam that when the nature of the
entry does not reflect any adverseness that is not required·
to be communicated. As we view it the extreme illustration D
given by the High Court may reflect an adverse element
compulsorily communicable, but if the graded entry is of
going a step down like falling from 'very good' to 'good'
that may not ordinarily be an adverse entry since both have
a positive grading. All that is required by the authority E
recording confidentials in the situation is to record reasons
for such downgrading on the personal file of the officer
concerned and inform him of the change in the form of an
advice. If the variation warranted be not permissible, then
the very purpose of writing annual confidential reports F
would be frustrated. Having achieved an optimum level the
employee on his part may slacken in his work, relaxing
secure by his one-time achievement. This would be an
undesirable situation. All the same the sting of
adverseness must, in all events, not be rejlected in such G .
variations, as otherwise, they shall be communicated as
such. It may be emphasised that even a positive
confidential entry in a given case can perilously be adverse
and to say that an ad'(erse entry should always be
qualitatively damaging may not be true. In the instant case
H
1008 SUPREME COURT REPORTS [2013] 5 S.C.R.
A we have seen the service record of the fir~t respondent.
No reason for the change is mentioned. The downgrading
is reflected by comparison. This cannot sustain. Having
explained in this manner the case of the first respondent
and the system that should prevail in the Jal Nigam we do
B not find any difficulty in accepting the ultimate result arrived
at by the High Court."
Several High Courts as also the Central Administrative
Tribunal in their various judgments followed the decision of this
Court in U.P. Jal Nigam (supra), inter alia, to hold that in the
C event the said adverse remarks are not communicated causing
deprivation to the employee to make an effective representation
there against, thus should be ignored. Reference may be made
to 2003(1) ATJ 130, Smt. T.K.Aryaveer Vs.Union of India &
Ors, 2005(2) ATJ, Page 12, 2005(1) ATJ 509-A.B. Gupta Vs.
o Union of India & Ors. and 2003(2) SCT 514- Bahadur Singh
Vs. Union of India & Ors.
Our attention, however, has been drawn by the learned
Additional Solicitor General appearing for the respondents to
a recent decision of this Court in Union of India & Anr. Vs.
E Major Bahadur Singh - (2006) 1 SCC 368 where a Division.·
Bench of this Court sought to distinguish the U:P. Jal
Nigam(supra) stating as follows:
"8. As has been rightly submitted by learned counsel for
the appellants U.P. Jal Nigam case has no universal
F application. The judgment itself shows that it was intended
to be meant only for the employees of U.P.Jal Nigam
only."
With utmost respect, we are of the opinion that the
judgment of U.P.Jal Nigam(supra) cannot h~ld to be
G applicable only to its own employees. It has laid down a
preposition of law. Its applicability may depend upon the
rules entirely in the field but by it cannot be said that no
law has been laid down therein. We, therefore, are of the
opinion that the matter should be heard by a larger Bench.
H 3. Subsequent to the above two decisions, in the case of
SUKHDEV SINGH v. UNION OF !NOIA 1009·
Dev Dutt vs. Union of India and others3 , this Court had an' A
occasion to consider the question about the communication of
the_ entry in the ACR of a public servant (other than military
service). A two Judge Bench on elaborate and detailed
consider'ation of the ma1ter and also after taking into
considera~ion the decision of this Court in U.P. Jal Nigam 1 and B
principles of natural justice exposited by this Court from time
to time particularly in AK Praipak vs. Union of lndia 4 ; Maneka
Gandhi vs. Union of lndia 5 ; Union of India vs. Tutsi Ram
Pate/ 6 ; Canara Bank vs. ·v.K. Awasthy7 and State of
Maharashtra vs. Public Concern for Governance Trust6 c
concluded that every entry in the ACR of a public service must
be communicated to him within a reasonable period whether
it is poor, fair, average, good or very good entry. This is what
this Court in paragraphs 17 & 18 of the report in Dev Outt3 at
page 733: • , ·
D
"In our opinion, every entry in the A.C.R. of a public servant
must be communicated to him within a reasonable period,
whether it- is a poor,Jair, average, good or very good entry.
This is because non-communication of such an entry may
adversely affect the employee in two ways : (1) Had the E
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 of making a representation
against the entry if he feels it is unjustified, and pray for its
F
upgradation. Hence non-communication of an entry is
arbitrary, and it has been held by the Constitution Bench
decision of this Court in Maneka Gandhi vs. Union of
India (supra) that arbitrariness violates Article 14 of the
3. c2000) 8 sec 725. G
4. (1969) 2 sec 262.
5. (1978) 1 sec 248.
6. (1985) 3 sec 398.
7. c2005) 6 sec 321.
8. c2007) 3 sec 587. H
1010 SUPREME COURT REPORTS [201315 $.C.R.
A Constitution.
Thus it is not only when there is a benchmark 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
B is the soul of natural justice. Even an outstanding entry
should be communicated since that '('Ould boost the
morale of the employee and make him work harder."
4. Then in paragraph 22 at page 734 of the report, this
Court made the following weighty observations:
c "It may be mentioned that communication of entries and
giving opportunity to represent against them is particularly
important 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
D destroy the career of 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
E promoted."
5. In paragraphs 37 & 41 of the report, this Court then
observed as follows:
"We further hold that when the entry is communicated to
him the public servant should have a right to make a
F representation against the entry to the concerned authority,
and the concerned authority must decide the
representation in a fair manner and within a reasonable
period. We also hold that the representation must be
decided by an authority higher than the one who gave the
G 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
H servants. The State must be a model employer, and must
SUKHDEV SINGH v. UNION OF INDIA 1011
act fairly towards its employees. Only then would good A
governance be possible.
In our opinion, non-communication of entries in the Annual
Confidential Report of a public servant, whether he is in
civil, judicial, police or any other service (other than the
military), certainly has civil consequences because it may B
affect his chances for promotion or get other benefits (as
already discussed above). Hence, such non-
communication would be arbitrary, and as such violative
of Article 14 of the Constitution."
6. We are in complete agreement with the view in Dev C
Dutt3 particularly paragraphs 17, 18, 22, 37 & 41 as quoted
above. We approve the same.
7. A three Judge Bench of this Court in Abhijit Ghosh
Dastidar vs. Union of India and others9 followed Dev Dutt3. In
paragraph 8 of the Report, this Court with reference to the case D
under consideration held as under:
"Coming to the second aspect, that though the benchmark
"very good" is required for being considered for promotion
admittedly the entry of "good" was not communicated to
the appellant. The entry of 'good' should have been E
communicated to him as he was having "very good" in the
previous year. In those circumstances, in our opinion, non-
communication of entries in the ACR of a public servant
whether he is in civil, judicial, police or any other service
(other than the armed forces), it has civil consequences F
because it may affect his chances for promotion or get
other benefits. Hence, such non-communication would be
arbitr:ary and as such violative of Article 14 of the
Constitution, The same view has been reiterated in the
above referred. decision relied on by the appellant. G
Therefore, the entries "good" if at ,all granted to the
appellant, the same should not have been taken into
consideration for being considered for promotion to the
higher grade. The respondent has no case that the
9. c2009) 16 sec 146. H
1012 SUPREME COURT REPORTS [2013] 5 S.C.R.
A appellant had ever been informed of the nature of the
gradihg given to him."
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
8 achieving threefold objectives. First, the communication of every
entry in the ACR to a public servant helps him/her to work harder
and achieve' more that helps him in improving his work and give
better results. Second and equally important, on being made
aware of the entry in the ACR, the public servant may feel
dissatisfied with the same. Communication of the entry enables
C him/her to make representation for upgradation of the remarks
entered in th~ ACR. Third, communication of every entry in the
. ACR brings transparency in recording the remarks relating to
a public servant and the system becomes more conforming to
the principles of natural justice. We, accordingly, hold that every
entry in ACR - poor, fair, average, good or very good - must
D be communicated to him/her within a reasonable period.
9. The decisions of this Court in Satya Narain Shukla vs.
Union of India and others10 and K.M. Mishra vs. Central Bank
of India and others11 and the other decisions of this Court
taking a contrary view are declared to be not laying down a
E good law.
10. Insofar as the present case is concerned, we are
informed that the appellant has already been promoted. In view
thereof, nothing more is required to be done. Civil Appeal is
disposed of with no order as to costs. However, it will be open
F to the appellant to make a. representation to the concerned
authorities for retrospective promotion in view of the legal
position stated by us. If such a representation is made by the
appellant, the same shall be considered by the concerned
authorities appropriately in accordance with law.
G 11. I.A. No: 3 of 2011 for intervention is rejected. It will be
open to the applicant to pursue his legal remedy in accordance
with law.
K.K.T. , Appeal disposed of.
10. (2006) s sec es.
H 111 c2oos> s sec 120.
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