Holding

The DPC’s discretion in assessing officers and communicating only adverse ACR remarks is not subject to judicial interference, so the High Court’s order was set aside.

Summary

The case concerned a Grade‑A officer of the Customs and Central Excise Service (respondent S.K. Goel) who claimed that his Annual Confidential Reports (ACRs) for 1994‑95 were improperly graded and that the lower grading by the reviewing officer was not communicated to him, affecting his seniority for promotion to Commissioner. The Departmental Promotion Committee (DPC) had considered his ACRs, found no adverse remarks, and placed him below other officers. The Central Administrative Tribunal dismissed his petition, holding that only adverse entries need be communicated. The Delhi High Court set aside the Tribunal’s order, directing fresh consideration of his seniority. On appeal, the Supreme Court held that the DPC had followed the prescribed norms, that only adverse ACR entries require communication, and that courts should not interfere with DPC decisions absent illegality or adverse grading. Consequently, the High Court’s order was set aside and the appeal allowed.

Issues considered

Whether the High Court erred in not applying the government instructions that only adverse remarks in ACRs need to be communicated.
Whether the DPC’s assessment and promotion decision can be judicially reviewed in the absence of adverse entries or procedural irregularities.

Legislation cited

Constitution of Indias. Article 226

Subjects

Annual Confidential ReportDepartmental Promotion Committeesenioritypromotionadverse remarksjudicial reviewservice lawcommunication of ACRcourt interference

Judgment

A UNION OF INDIA AND ANR. .J.r
v.
S.K. GOEL AND ORS.

FEBRUARY 12, 2007

B [DR. AR. LAKSHMANAN AND AL TAMAS KABIR, JJ.]

Service Law:. ,k-
Annual Confidential Report (ACR)-Adverse entries and remarks in-
c Downgrading of ACR-Communication of-Requirement-Proceedings and
recommendations of Departmental Promotion Committee (DPC)-Interference
with-DPC was constituted for promotion to the post of Commissioner of
Customs and Central Excise (CCE)-One of the Grade A officers of the
Customs and Central Excise services represented that his ACRs for the years
D 1994-95 had not been properly graded or considered by DPC-He also
claimed that the lower grading given to him by the Reviewing Officer on one
ACR was not communicated to him-The representation of the officer was f-
rejected-The officer was not promoted to the post of CCE-The Tribunal
•,
dismissed the application filed by the officer and held that it was not necessary
to communicate the remarks/grading which were not adverse or not below
E the bench mark prescribed for promotion to a particular post-The High
Court allowed the writ petition filed by the officer-Correctness of-Held:
Only adverse entries and remarks are to be communicated and there is no
provision to communicate the downgrading of ACR to a Government
employee-It is not necessary to communicate the remarks/grading which
are not adverse or not below the bench mark prescribed for promotion-
F 1-
There will ordinarily be no interference by the courts oflaw in the proceedings
and recommendations ofthe DPC unless such DPC meetings are held illegally
or ;n gross violation of the rules-High Court judgment set aside.

The first respondent and respondent Nos. 2 to 5 joined the Indian
G Customs and Central Excise Service as Grade A Officers on probation as
Assistant Collectors of Central Excise and were duly confirmed in Group A
service. The respondents Nos. 2 to 5 were placed higher in the order of r'-
seniority. The first respondent was promoted on an ad hoc basis and was
subsequently regularized.

H 432
U.0.1. v. S.K. GOEL 433
..,.l A Departmental Promotion Committee (DPC) was constituted for A
promotion to the post of Commissioner of Customs and Central Excise. The
first respondent represented against the seniority assigned to him and he
claimed that his Annual Confidential Reports (ACRs) for the years 1994-
1995 had not been properly graded or considered by the DPC and that the
lower grading given to him by the Reviewing Officer on one ACR was not
communicated to him. The appellant rejected the representation of the first B
respondent and promoted respondents No. 2 to 5 to the post of Commissioner
of Central Excise and Customs.

Being aggrieved, the first respondent filed an application before the
Central Administrative Tribunal. The Tribunal dismissed the said application C
and held that it was not necessary to communicate the remarks/grading which
were not adverse or not below the bench mark prescribed for promotion to a
particular post. The High Court allowed the writ petition filed by the first
respondent. Hence the appeal.

The following question arose before the Court:- D
Whether the High Court had erred in its failure/omission to .take into
consideration the government instructions for regulating/recording of ACR
which provide for only communication of adverse remarks in the ACRs?

Allowing the appeal, the Court
E
HELD: 1. In the instant case, respondent No. 1 had received no adverse
remarks and had rather been graded at the level of the prescribed bench mark
of 'above average'. Therefore, there was neither any onus nor requirement
upon the appellant to have communicated the ACR entry to respondent No. 1.
(Para 23) (443-D) F
Manik Chand v. U.0.1. (2002) 3 ATJ 268, Union of India v. Major
Bahadur Singh, (2006) 1 SCC 368, R.L. Butail v. Union of India [1970] 2
SCC 876, State Bank ofIndia v. Kashinath Kher, (1996) 8 SCC 7.62 and State
of U.P. v. Yamuna Shankar Mishra, AIR (1997) SC 367, referred to.
G
2.1. The Departmental Promotion Committee (DPC) followed the
prescribed norms as also applied its discretion vested in it to determine the
comparative merit of the eligible officers and tbereafter made recommendations
in order of merit There was thus no occasion or justification for interference
in the order passed by the appellants, as upheld by the Tribunal. [Para 241
(443-EJ H
434 SUPREME COURT REPORTS [2007] 2 S.C.R.

A UP. Jal Nigam v. Prabhat Chandra Jain, AIR (1996) SC 1616, held
inapplicable.

2.2. In this case, the downgrading had been done by comparison and there
appears to be no reason recorded for such downgrading. However, in the
instant case, the downgrading still meets the bench mark and, therefore,
B merely because certain persons have been assessed by the DPC to be better
than the first respondent, it did not imply that he should have been
communicated his grading. [Para 25] [443-G-H; 444-A]

3. The judgment of the Tribunal does not call for any interference
C inasmuch as it followed the well settled dictum of service jurisprudence that
there will ordinarily be no interference by the courts of law in the proceedings
and recommendations of the DPC unless such DPC meetiDgs are held illegally
or in gross violation of the rules or there is mis-grading of confidential
repost~. In the present case, the DPC had made an overall assessment of all
the relevant confidential reports of the eligible officers who were being
D considered. The DPC considered the remarks of the reviewing officers. There
was clear applicJition of mind. Respondent No. l did fulJill the bench mark.
[Para 26] (444-B-C)
• ""!,
4.1. The post of the Commissioner of Customs and Central Excise is a
post required to be filled up on selection made strictly on the basis of merit.
E No judicial review of the DPC proceedings, which are ordinarily conducted
in accordance with the standing government instructions and Rules is
warranted. (Para 27] [444-E)

4.2. It is, thus, seen that the decision taken by the appellants has been
as per the instructions issued on the subject that only adverse entries and
F remarks are to be communicated and there is no provision to communicate
the downgrading of ACR to a government employee. The decision of the
Central Government is in strict accordance with the prevailing rules and
government instructions. [Para 271 [444-Fl

G 5.1. In the absence of any violation, the impugned order of the High Court
while undertaking a judicial review under Article 226 of the Constitution of
India is wholly unjustified. Since the matter of seniority has been well settled
and this Court, in a plethora of cases, has held that the seniority/promotion
granted on the strength of the DPC selection should not be unsettled after a
lapse of time.. Therefore, in the facts and circumstances of the present case,
H where there is no adverse remarks whatsoever against respondent No.I, the
U.0.1. v. S.K. GOEL [LAKSHMANAN, J.J 435-
.,-4. High Court ought not to have interfered with and passed the impugned A
directions. !Para 2711444-G-H)

5.2. The DPC enjoyed full discretion to devise its method and procedure
for objective assessment of suitability and merit of the candidate being
considered by it. Hence, the impugned order of the High Court is liable to be
set aside. {Para 27) (445-B) B
.• Aili/ Katiyar v. Union of India, (1997) 1 SCC 280 and Union Public
-~
Service Commission v. L.P. Tiwari, (2006) 12 SCALE 278, relied on.

U.P.S.C. v. K. Rajaiah, (2005) 10 SCC 15, cited.
c
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 689 of2007.

From the Final Judgment and Order dated 13.1.2005 of the High Court
ofDdhi in W.P. No. 5404/2003.

R. Mohan, A.S.G., T.S. Doabia, Tufail A. Khan, B.K. Prasad and P. D
Parmeswaran for the Appellants.
1

~
Rajiv Dutta, Ajay Veer, S.K. Singla, B.S. Jain, M.F. Humayunisa, Kumar
Dushyant Singh and Vipin Gupta for the Respondents.

The Judgment of the Court was delivered by E
DR. AR. LAKSHMANAN, J. 1. Leave granted.

2. The Union of India through Secretary, Department of Revenue,
Ministry of Finance, New Delhi is the first appellant in this appeal. The
'I\ second appella~t is the Department of Personnel and Training through its F
Secretary, Ministry of Personnel & Pension, New Delhi. The first respondent
is the contesti_ng respondent. Respondent Nos. 2-5 and the first respondent
joined the Indian Customs and Central Excise Service as a Grade A Officer
on probation and was promoted as Assistant Collector of Central Excise after
selection by the UPSC. Respondent No. I and other respondents were
confirmed in Group A service. In the order, the proforma respondents were G
.-] placed higher in order of seniority. Thereupon respondent No. I was promoted

. as Deputy Collector of Central Excise on an ad hoc basis in the year 1983 and
the said appointment was regularized as Deputy Collector of Customs and
Central Excise, vi de order dated 16. 7 .1985. The Government oflndia, Ministry
of Finance issued an Office Order No. I 87 of 1997 for the ad hoc promotion H
436 SUPREME COURT REPORTS [2007] 2 S.C.R.

A of respondent No. I and proforma respondents to officiate in the grade of
Commissioner of Customs and Central Excise.

3. The Departmental Promotion Committee (for short "the DPC") was
constituted for considering officers for promotion to the post of Commissioner
of Customs and Central Excise in April, 1997 and February, 1998. Respondent
B No. I represented against the seniority assigned to him and he Claimed that
his ACR's for the year 1994-1995 had not been properly graded or considered
by the DPC and the lower grading given to him by the Reviewing Officer on
one ACR was not proper and DPC ought to have considered the higher
grading given by the reporting Officer.
c 4:' The Office Order No. 11 of 1999 was issued on 12.1.1999 by the
Government oflndia, Ministry of Finance whereby promotions of these officers
were made on the post of Commissioner of Customs and Central Excise. Office
Memorandum No. F. No.Q-32012/10/97-AO-II Govt. of India, Ministry of
Finance, Department of Revenue was issued whereby the representation of
D respondent No. I was rejected for the following reasons stated as under:

"(i) The recommendations of the 5th Central Pay Commission that for
promotion to the Central Services, as in the case of IAS Officers, the .'
inter-se seniority as fixed by the UPSC at initial entry into the seryice,
should remain unaffected, is under consideration of the Govt. and a
E decision in this respect is likely to take time as these involve significant
modifications in DPC guidelines. As the recommendations of the Pay
Commission are yet to be accepted by the Govt., the existing
instructions/guidelines of the Govt. pertaining to DPC are required to
be followed.

F (ii) The provisions of para 6.2. l(e) of the DPC guidelines circulated by
DOP&T vide their OM dated 10th April, 1989 were followed by the
DPC which met in UPSe and considered the case of Sh. Goel for
promotion to the grade of Commissioner. As such, it may not be
appropriate to say that the DPe took into consideration the lower •
grading given to Shri Goel by the reviewing officer and not the higher
G
grading given by the reporting officer.

(iii) Although, the reviewing officer had slightly downgraded the
overall grading on Shri Goel in the ACR for the year 1994-95 and the .
AeR also could not be sent to eve for counter signature, it cannot
H be concluded that it had adverse impact on the findings of the DPe
U.0.1. v. S.K. GOEL [LAKSHMANAN, J.] 437
in the matter of his promotion to the grade of Commissioner. The DPC A
made its own assessment on the basis of the entries in the ACRs and
overall grading of the reviewing /reporting officers was of no
consequence.

(iv) It is not for an individual officer to claim that his case is outstanding
or otherwise as has been claimed by Shri Goel in his representation. B
It is for the DPC to make assessment on the officer after going
through his service records. The mere grant of presidential Award
- "'/.._
cannot entitle an Officer to claim that he should be awarded outstanding
grading by the DPC."

5. Respondent No.I filed OA No. 141 of 2000 before the Central C
Administrative Tribunal, Principal Bench, New Delhi with the following prayers:-

"(i) To direct that, in the grade of Commissioner, the seniority of the
applicant over respondents 3 to 6 be maintained, and, therefore, to
declare the impugned Office order No. l I of I 999 illegal to the extent
it places respondents 2 to 5 above the applicant, and to give correct D
placement of the applicant at SL No. I of the list contained in the said
order,

(ii) In the alternative, to set/quash the promotions of respondents 3
to 6 insofar as they have been promoted and given seniority above E
the applicant,

(iii) To quash and set aside the undated Office Memorandum
(Annexure-A2) issued by the respondent No.2,

(iv) To grant costs of this application to the applicant herein, and
F
(v) To pass such other order or orders as may be deemed fit and
proper in the interests of justice."

6. The appellants filed their counter affidavits rebutting the claim of
respondent No. l. It was submitted that the DPC had followed duly approved
norms and procedure as prescribed vide para 6.2. I of M.M. (DOP & T) No. G
22011/556-Estt.{D) dated I 0.4. I 989.

7. The Tribunal dismissed the said petition by following the Full Bench
decision in the case of Manik Chand v. V.0.1. & Ors., (2002) 3 ATJ 268 to
hold that it is not necessary to communicate the remarks/grading which are
not adverse or not below the bench mark prescribed for promotion to a H
438 SUPREME COURT REPORTS [2007] 2 S.C.R.

A particular post in respect of a selection post. In other words, if the applicant
was meeting the bench mark, the question of communication of the entry,
which in no event can be termed as adverse, would have arisen.
. '
8. The Tribunal also considered and distinguished the facts and ratio '
of the case of U.P. Jal Nigam v. Prabhat Chandra Jain, AIR (1996) SC 1616
B by observing that it was not shown that the confidential reports had been
down graded and once they were not down graded, the question of
communi<;:ating such grading did not arise.

9. Respondent No. I filed Writ Petition No. 5404 of2003 before the High
Court of Delhi. The High Court allowed the writ petition and quashed the
C orders of the Tribunal and AC Rs for the years 1992-1993, I 993-1994 and I 994-
1995 and remanded the matter to the appellant for fresh consideration of the
seniority of respondent No. I in terms of the observations made by the High
Court. The High Court in the concluding portion of its order observed as
under:
·.D
"Similar is the view expressed in Full Bench Judgment of this Court
in JS.Garg v. Union of India reported in I 00 (2002) DL T 177. From
the catena of cases cited above it emerges that when an entry reflects
an adverse element it may not amount to adverse entry in the strict
sense of the promotion since both may be positive grading but as
E observed in U.P. Jal Nigam 's case, the authority recording the
confidential report in such situation must record reasons for such
down grading in the personal file of the officer concerned and inform
him of the change in the form of an advice. The rate must be given
appropriate guidance and opportunity as and when his weakness is
noticed. If taking that entry into consideration seniority is not granted
F to the rate, it has an element of adverseness as far as his service
profile is concerned. Therefore, it is well settled that although the
Court cannot moderate the appraisal and grading given by an officer
while exercising the power of judicial review but as the entries for the
period indicated above had an element of adverse reflection and for
G that purpose his seniority has been downgraded, the ACRs ought to
have been communicated to the petitioner, which has not been done
in the instant case, therefore, reliance placed by the Tribunal on the
decision of Punjab and Haryana High Court in Union of India &Ors
v. MS Preet and Anr. In Civil Writ Petition No. 13024/CAT/2002
rendered on 22.11.2002 would not come into play. We set aside and
H
,_

- ....-\-
U.0.1. v. S.K. GOEL [LAKSHMANAN. J.] 439
quash the order of the Tribunal and the ACRs for the year. 1992-1993 . A
1993-1994 and 1994-1995 and remand the case back to the respondent
to reconsider afresh within a period of three months the seniority of
the petitioner in terms of the above observations qua the respondents."

JO. Aggrieved by the said order, appellant Nos. I and 2 preferred the
above appeal by way of special leave petition before this Court. B
11. We have heard Mr. R. Mohan, learned Additional Solicitor General
- -~ and Mr. T.S. Doabia, learned senior counsel appearing for the appellants and
Mr. Rajiv Dutta, learned senior counsel appearing for respondent No. I.

12. Mr. R. Mohan, learned Additional solicitor General took us through c
the impugned order passed by the High Court and other relevant records and
submitted that the High Court erred in its failure/omission to take into
consideration the Government instructions for regulating recording of Annual
Confidential Reports which provide for only communication of adverse remarks
in the ACRs. Since respondent No. I had received no adverse remarks and has
D
rather been graded at the level of the prescribed bench mark of 'above
~ average', therefore, there was neither any onus nor requirement upon the
~ , appellant to have communicated the ACR entry to respondent No. I. Learned
Additional Solicitor General further submitted that the DPC followed the
prescribed norms as also applied its discretion vested in it to determine the
comparative merit of the eligible officers and thereafter made recommendations E
in order of merit. There was thus no justification for interference in the order
passed by the appellants as upheld by the Central Administrative Tribunal.

13. Learned Additional Solicitor General has also invited our attention
to the judgment passed by the Tribunal as well as by the High Court. He also
-~
cited the following rulings: F

I. Union of India & Anr. v. Major Bahadur Singh, [2006] I SCC 368.

2. R.L. Butail v. Union of India & Ors., [I 970] 2 SCC 876.

3. A nil Katiyar(Mrs.) v. Union of India & Ors., [1997] I SCC 280. G
) '
-·1 14. Mr. Rajiv Dutta, learned senior counsel appearing for the contesting
respondent No. I submitted that respondent No. I along with respondent Nos.
2-5 joined the Indian Custom and Central Excise Services on probation in
Group A after selection by the UPSC and that at the initial entry stage,
~
respondent No. I was fixed over and above respondent Nos. 2-5 vide notification H
440 SUPREME COURT REPORTS [2007] 2 S.C.R.

A in the Customs and Central Excise establishment S.No. 148 dated 19th December,
I975. In the said seniority list Shri Y.G. Parande was shown at S.No.2, Shri Hari
Om Tiwari, respondent No.3 was shown at S.No.3, Shri C. Sathpathy, respondent
No.4 was shown at S.No. I 2 and Shri lype Mathew, respondent No.5 was
shown at S.No.14 and respondent No. I was promoted as Deputy Collector of
Central Excise on ad hoc basis vide Order No. I 49/83 dated 12.8. I 983 and was
B appointed on regular basis as Deputy Collector of Customs and Central Excise
vide notification dated I 6.7 .1985. Thereupon, the Department of Revenue,
Ministry of Finance, Government of India issued a civil list of Indian Revenue
Services and in that list also respondent No. I was shown as senior to
respondent Nos.2-5 and that in the year 199 I, respondent No. I was decorated
C with President's award for specially distinguished services after considering
his achievements for the past 15 years.

15. Mr. Rajiv Dutta further submitted that right from the day of initial
entry stage to the date of ad hoc promotion to the post of Commissioner,
respondent No. I was shown sen~or to respondent Nos. 2-5. He further
D submitted that respondent No. I has been an upright, hardworking and honest
officer and has been rated as outstanding from I 989-1990 to I 996-1997 by the
reporting officers. However, subsequently respondent No. I came to know ~
that for the years I 992- I 993, 1993-1994 and I 994-1995, the reviewing officer
had down graded his ACR by one step i.e. from 'outstanding' to 'very good'.
E It is significant that for the years I 995- I 996 and I 996-1997 the reporting officer
rated respondent No. I as 'outstanding' and on his ACR being forwarded to
the Central Vigilance Commissioner also respondent No. I was rated as
'outstanding'.

I 6. According to Mr. Raj iv Dutta, the reviewing officer did not give any
F reason for downgrading respondent No. I from 'outstanding' to 'very good'.
Moreover, there was no material before him for downgrading the rank of
respondent No. I. The Reviewing did not indicate any material on the basis
of which the said reviewing officer purported to reduce the grading of
respondent No. I from 'outstanding' to 'very good'. It was also contended
that respondent No. I was never communicated this downgrading by the
G reviewing officer in the fonn of advice or otherwise and respondent No. I was
never given an opportunity to show that the downgrading was totally
unjustified and uncalled for. «

17. It was further submitted that in February, 1998, DPC was held for
H promotion to the post of Commissioner of Customs and Central Excise. The
U.0.1. v. S.K. GOEL [LAKSllMANAN. J.J 441

said DPC considered the case of respondent No. I along with the case of A
respondent Nos. 2-5. No interviews were held by the DPC. For considering
the merits and demerits of the candidates, the DPC took into consideration
only the AC Rs for the years 1988-90 to 1996-1997. Jn the case of respondent
No. I, the defective and incomplete ACRs for the years 1992-1993, 1993-1994
and 1994-1995 were considered by the DPC and the panel was prepared for B
promotion to the post of Commissioner, Customs and Central Excise by the
DPC and respondent No. I was placed below respondent Nos. 2-5 thereby
disturbing his seniority. The DPC apart from taking the defective and incomplete
AC Rs of respondent No. I for the years 1992-1993 to 1994-1995 did not take
into considering the recommendations of the 5th Pay Commission to the
effect that the inter se seniority of the candidates should be maintained. Mr. C
Rajiv Dutta also relied on the decision in State Bank of India v. Kashinath
Kher, [ 1996] 8 SCC 762 at 771 para 15 wherein this Court pointed out that the
object of writing the confidential report is two fold i.e.

(i) to give an opportunity to the officer to remove inefficiency and to D
inculcate discipline;

(ii) It seeks to serve improvement of quality and excellence and efficiency
of public service. The officers while writing confidential reports should show
objectivity, impartiality and fair assessment without any prejudice whatever
with the highest sense of responsibility to inculcate in the officer devotion E
to duty, honesty and integrity so as to improve excellence of the individual
officers.

18. Mr. Raj iv Dutta also cited the judgment of this Court in State of U.P.
v. Yamuna Shankar Mishra, AIR (1997) SC 3671 wherein this Court held that
the object of writing the confidential reports and making entries in the character F
rolls is to give an opportunity to a public servant to improve excellence.
Article 51 A(j) of the Constitution of India enjoins upon every citizen the
primary duty to constantly endeavour of prove excellence, individually and
collectively, as a member of the group. Given an opportunity, the individual
employee strives to improve excellence and thereby efficiency of administration G
would be augmented. The officer entrusted with the duty to write confidential
reports, has a public responsibility and trust to .write the confidential reports
- i objectively, fairly and dispassionately while giving, as accurately as possible,
the statement of facts on an overall assessment of the performance of the
~ubordinate officer. It should be founded upon the facts or circumstances. H
Though sometimes, it may not be part of record, but the conduct, reputation
442 SUPREME COURT REPORTS [2007] 2 S.C.R.

A and character acquire public knowledge or notoriety and may be within his
knowledge. Before forming an opinion to be adverse, the reporting officers
writing confidential reports should share the information which is not a part
of the record with the officer concerned have the information confronted by
the officer and then make it part of the record ..This amounts to an opportunity
B given to the erring/corrupt officer to correct the errors of the judgment,
conduct, behaviour, integrity or conduct/corrupt proclivity. If despite giving
such an opportunity, the officer fails to perform the duty, correct his conduct
or improve himself, the same may be recorded in the confidential reports and
a copy thereof supplied to the affected officer so that he will have an
opportunity to know the remarks made against him. If he feels aggrieved, it
x-·
C would be open to him to have it corrected by appropriate representation to
the higher authorities or any appropriate judicial forum for redressal. Thereby,
honesty, integrity, good conduct and efficiency get improved in the
performance of public duties and standards of excellence in services constantly
rises to higher levels and it becomes successful tool to manage the services
D with officers of integrity, honesty, efficiency and devotion.

19. It was also submitted that in the case of UP. Jal Nigam & Ors. v.
Prabhat Chandra Jain & Ors., (supra), this Court reiterated these very
principles in the matter of recording the ACRs and that of bringing the
downgrading/adverse remarks to the notice of the officer with the sole aim
E of giving opportunity to the officer to improve his conduct. In the case of
respondent No. I, he was downgraded from 'outstanding' to 'very good' and
no reason for the same was given and that there was no material on the basis
of which the reviewing officer could downgrade respondent No. I. No reasons
for such downgrading were given nor was respondent No. I appraised of the
F downgrading, thereby rendering the ACRs defective which could not be
considered by the DPC.

20. Arguing further, learned senior counsel, submitted that if the
downgraded entry is considered to be positive still it may adversely affect the
rating as it happened in the case of respondent No. I and that the DPC
G considered only ACRs from 1989-1990 to 1996-1997 in respect of promotions
to the post of Commissioner to Central Excise. Apart from ACRs, the DPC had
no other material with them.
Y-
21. It was submitted further that the DPC had also fallen into grave error
H in ignoring the recommendations of the 5th Pay Commission followed by the
Government of India to the effect that in the matter of promotion inter se
U.0.1. v. S.K. GOEL [LAKSHMANAN . .I.] 443

seniority fixed at the time of initial enty stage should not be disturbed. In the A
facts and circumstances of the case, learned senior counsel submitted that the
impugned judgment of the High Court which is clearly based upon the law
as laid down by this Court in a number of cases is unassailable and, therefore,
the civil appeal has no merits.

22. We have carefully considered the rival submissions with reference B
to the records placed and material placed before us and the judgment of the
Tribunal and that of the High Court. We heard extensive arguments from both
sides. The only question that arises for consideration in the instant case is
as to whether the High Court has erred in its failure/omission to take into
consideration the government instructions for regulating recording of ACR C
which provide for only communication of adverse remarks in the ACRs.

23. In the instant case, respondent No. I had received no adverse remark~
and had rather been graded at the level of the prescribed bench mark of
'above average', therefore, as rightly pointed out by learned Additional
Solicitor General, there was neither any onus nor requirement upon the D
appellant to have communicated the ACR entry to respondent No. I.
~ 24. At the time of hearing, the original record was placed before us. We
> ' have carefully perused the same. The DPC, in our view, followed the prescribed
norms as also applied its discretion vested in it to determine the comparative
merit of the eligible officers and thereafter made recommendations in order of E
merit. There was thus no occasion or justification for interference in the order
passed by the appellants, as upheld by the Tribunal.

25. Learned senior counsel appearing for respondent No. I placed strong
reliance on the judgment of this Court in UP. Jal Nigam (supra). In our
opinion, the said decision is entirely distinguishable on facts and circumstances F
from the case on hand and is wrongly been relied upon by the High Court.
In the UP. Jal Nigam 's case, the officer concerned Shri P.C. Jain had been
downgraded at certain point of time. Before the High Court, it had been
alleged that downgrading of entry could not be termed as adverse and that
the same should be communicated. The U.P. Jal Nigam Service Rules provided G
for communication of adverse entries. In this case, downgrading had been
done by comparison and there appears to be no reason recorded for such
downgrading. However, in the instant case, the downgrading still meets the ·
, bench mark and therefore, merely because certain persons have been assessed
· by the DPC to be better than the respondent, did not imply that he should
H
444 SUPREME COURT REPORTS [2007] 2 S.C.R.

A have been communicated his grading.
~
26. In our opinion, the judgment of the Tribunal does not call for any
interference inasmuch as it followed the well settled dictum of service

•
>-
jurisprudence that there will ordinarily be no interference by the courts of law
in the proceedings and recommendations of the DPC unless such DPC
B meetings are held illegally or in gross violation of the rules or there is mis-
grading of confidential reports. In the present case, the DPC had made an
overall assessment of all the relevant confidential reports of the eligible
officers who were being considered. The DPC considered the remarks of the
(
reviewing officers. There was clear application of mind. Respondent No. I did .X:-
c fulfill the bench mark. Hence, the impugned direction of the High Court ought
not to have been issued as the same will have the impact of causing utter
·~

confusion and chaos in the cadre of the Indian Revenue Service, Customs l

an,d Central Excise Service.

"
'
("
27. It was also argued by the learned senior counsel appearing for
D respondent No. I that the entries for the period had an element of adverse :::::::
reflection and for that purpose the seniority of respondent No. I was
downgraded and, therefore, the ACR ought to have been communicated to
respondent No. I. In our opinion, the observations of the High Court are f
wholly unjustified inasmuch as the post of Commissioner of Customs and

E
Central Excise is a post required to be filled up on selection made strictly on ··-
the basis of merit. No judicial review of DPC proceedings, which are ordinarily
conducted in accordance with the standing government instructions and
Rules is warranted. The norms and procedure for DPC are prescribed in O.M.
dated 10.4.1989. It is thus seen that the decision taken by the appellants has
been as per the instructions issued on the subject that only adverse entries
F and remarks are to be communicated and there is no provision to communicate
the downgrading of ACR to a government employee. The decision of the ,_ _
Central Government is in strict accordance with the prevailing rules and
government instructions. In the absence of any violation, the impugned order
~
of the High Court while undertaking a judicial review under Art. 226 of the
Constitution of India, is wholly unjustified. Since the matter of seniority has
G been well settled and this Court in a plethora of cases has held that the
seniority/promotion granted on the strength of DPC selection should not be
unsettled after a lapse of time. Therefore, in the facts and circumstances of
the present case, where there is no adverse remarks whatsoever against Y--
respondent No. I, the High Court ought not to have interfered with and
passed the impugned direction. This apart, as per the instructions contained
H
~
+-
U.0.1. 1·. S.K. GOEL [LAKSHMANAN. J] 445
in para 6.21 ofDOPT Order No. 22011/5/86/Estt D dated 19.4.1981, as amended, A
.J._ the DPC is not required to be guided merely by the overall grading, if any,
that may be recorded in the CRs but to make its own assessment on the basis
of the entries in the CRs. The DPC enjoyed full discretion to devise its method
and procedure for objective assessment of suitability and merit of the candidate
being considered by it. Hence, the impugned order of the High Court, in our
opinion, is liable to be set aside. B

28. Case law on the subject

~ Y.._ I. Anil Katiyar(Mrs.) v. Union ofIndia & Ors., (1997) I SCC 280 : The
appellant and respondent No.4 in this case had joined the Central Agency
Section in the Ministry of Law of the Government of India as Assistant c
Government Advocates. The appellant was junior to respondent No.4. While
considering them for promotion to the post of Deputy Government Advocate,
which is a selection post, the DPC graded both of them as "very good" and
on the ground of seniority selected respondent No.4 for the said post. The
appellant unsuccessfully challenged the selection of respondent No.4 before D
the CAT on the ground that the DPC was not justified in grading her merely
as "very good" as in the ACRs for two of the relevant three years the
' departmental authorities had graded her as "outstanding" and for the third
year as "very good" while they had graded respondent No.4 as "very good"
in all the three ACRs. The CAT while refusing relief to the appellant on the
ground of want of jurisdiction to scrutinize the recommendations of the DPC, E
this Court perused the confidential procedure followed by the DPCs in the
Union Public Service Commission for giving overall grading, including that of
"outstanding" to an officer. Thereafter, refusing to interfere with the selection
of respondent No.4 by the DPC but setting aside the said observation of the
CAT, this Court held as under: F
-~
"Having regard to the confidential procedure which is followed by the
Union Public Service Commission, it is not possible to hold that the
decision of the DPC in grading the appellant as "very good" instead
of "outstanding" was arbitrary. No ground is, therefore, made out for
interference with the selection of respondent 4 by the DPC on the G
basis of which he has been appointed as Deputy Government
Advocate. But, at the same time, it has to be held that the Tribunal
- -"I
was in error in going into the question whether the appellant had been
-~
rightly graded as "outstanding" in the AC Rs for the years 1990-199 I
and 1991-1992. The observations of the Tribunal that out of the two
H
-t-
446 SUPREME COURT REPORTS [2007] 2 S.C.R.

A "outstanding" gradings given to the appellant one "outstanding"
grading does not flow from various parameters given and the reports ~
entered therein, cannot, therefore, be upheld and are accordingly set
aside."

2. Union Public Service Commission v. L.P. Tiwari & Ors., (2006) 12
B SCALE 278: This case relates to grading in selection list for promotion to
Indian Forest Service. The jurisdiction of Courts to interfere with evaluation ~
made by the expert committee was under consideration. The respondents 1--
were serving as State Service Forest Officers in the post of Assistant
)(_ j
Conservator of Forests. Both the officers became eligible to be promoted to
the Indian Forest Service. On an overall service records, Selection Committee
c assessed respondent as being "very good" and included his name at S.No.10
in the Select List of 200 l. Respondents 4-8 were assessed as "outstanding"
by the Selection Committee and were included at S.Nos. 3-7 in the selection
list. Respondent No. I claimed that he ought to have been assessed as ..--'
&-
"outstanding" and should have been assigned seniority in the Indian Forest
D Service Cadre over respondents 4-8. The Tribunal came to the conclusion that
patent material irregularities had been committed by the Selection Committee
for the year 200 l. This Court allowed the appeal filed by the UPSC and held t
that the evaluation made by an expert committee should not be easily interfered
with by the Courts which do not have the necessary expertise to undertake
the exercise that is necessary for such purpose. Speaking for the Bench,
'
E Altamas Kabir,J. in paragraphs 12, 13 & 14 of.the judgment held as under:
t
"12. It is now more or less well-settled that the evaluation made by
an expert committee should not be easily interfered with by the Courts ,..
which do not have the necessary expertise to undertake the exercise
I-
that is necessary for such purpose. Such view was reiterated as late 'i
F
as in 2005 in the case of UP.SC. v. K. Rajaiah and Ors., reported in i- -
[2005] I 0 SCC 15, wherein the aforesaid Rules for the purpose of
promotion to the l.P.S. Cadre was under consideration. Apart from the t
above, at no stage of the proceedings, either before the Tribunal or t-
~
the High Court or even before this Court, has any allegation of mala
G fides been raised against the Selection Committee and the only
grievance is that the Selection Committee erred while making
assessment of the. comparative merits of the respective candidates.
Y-
While concluding his submissions, Mr. Rao had pointed out that the
direction given by the High Court to the appellant to hold a Review
Departmental Promotion Committee was also erroneous since the
H
U.0.1. v. S.K. GOEL [LAKSHMANAN, J.] 447

Regulations provided for selection to be made not by a Departmental A
Promotion Committee but by a Selection Committee constituted as per
the Regulations.

13. Although, on behalf of the respondents it has been urged that
there was no bar which precluded the Tribunal from looking into the
original ACRs of the respective candidates, what we are required to B
consider is whether it was at all prudent on the part of the Tribunal
to have adopted such a procedure which would amount to questioning
the subjective satisfaction of the Selection Committee in preparing the
Select List.

14. From the submissions made and the materials on record, we are C
satisfied that the methodology which has been evolved and included
in the Regulations for grading the eligible officers have been religiously
followed by the Selection Committee which did not call for any
interference by the Tribunal. The High Court has merely followed the
decision of the Tribunal without independently applying its mind to D
the facts involved."

29. For the foregoing reasons, we hold that the DPC enjoyed full
discretion to devise its method and procedure for objective assessment of
> '
suitability and merit of the candidate being considered by it. Hence, the
interference by the High Court is not cal!ed for. E
30. Accordingly, the Civil Appeal stands allowed and the judgment of
the High Court is set aside. However, there shall be no order as to costs.

v.s.s. Appeal allowed.

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