Dr. Munnalal Tripathi vs Jawaharlal Nehru Krishi Vishwavidyalaya and Others

Sujoy Paul, J.—In this petition filed under Article 226 of the Constitution, the grievance of the petitioner is that the ACRs for the year ending 2003 and 2004 are not communicated to him and the same has resulted into his non-selection in Career Advance Scheme (CAS) and further on the promotional post of Professor (Agronomy). In Annexure P/1 dated 8.4.2008 it is mentioned that the adverse ACRs for the year 2002-2003 and 2003-2004, which were written by the reporting officer (Dean) are accepted by the Vice-Chancellor. Learned counsel for the petitioner submits that no adverse CR can be accepted without communicating it to the petitioner and without giving him an opportunity to represent against it. Per Contra, Shri S.B. Mishra, learned senior counsel submits that ACRs in question are not adverse in nature and the grading is only "D" for the aforesaid financial year. Shri Shashank Indapurkar, learned counsel for the respondent No. 1-A submits that the respondent No. 1-A came into being w.e.f. 19.8.2008 and he is not liable for any wrong done before its constitution.

I have heard learned counsel for the parties and perused the record.

The respondent No. 1 in its return at page 4 has stated as under:

From the record the adverse remark mentioned in the Confidential Reports has yet not been communicated to the petitioner, but it is submitted that petitioner is having knowledge of such adverse Confidential Report from the date of issue.

(Emphasis Supplied)

A bare perusal of this return makes it crystal clear that the ACRs in question have not been communicated to the petitioner. The respondents themselves termed those ACRs as "adverse" in the aforesaid return.

It is interesting to note here that adverse CR is not defined in any Statute. Any ACR which has a potential to adversely affect the career of an employee should be termed as an adverse CR. In a case, for example, if bench mark is "very good", an ACR of "good" will have an adverse impact on career of an employee. In those circumstances even a "good" ACR will be treated as adverse CR. This position has been dealt with by the Supreme Court in Dev Dutt Vs. Union of India (UOI) and Others, wherein the Supreme Court has opined as under:-

In our opinion, every entry (and not merely a poor or adverse entry) relating to an employee under the State or an instrumentality of the State, whether in civil, judicial, police or other service (except the military) must he 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 employee''s chances of promotion (or getting some other benefit), because when comparative merit is being considered for promotion (or some other benefit) a person having a ''good'' or ''average'' or ''fair'' entry certainly has less chances of being selected then a person having a ''very good'' or ''outstanding'' entry.

In most services there is a gradation of entries, which is usually as follows:

(i) Outstanding

(ii) Very Good

(iii) Good

(iv) Average

(v) Fair

(vi) Poor.

A person getting any of the entries at items (ii) to (vi) should be communicated the entry so that he has an opportunity of making a representation praying for its up gradation, and such a representation must be decided fairly and within a reasonable period by the concerned authority.

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 up gradation, and this may subsequently adversely affect their chances of promotion (or get some other benefit).

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'', ''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 benefit. 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 ''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 something wrong which the incumbent refused, or because the incumbent refused to do sycophancy of his superior, or because of caste or communal prejudice, or for some other extraneous consideration.

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, fair, 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 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 up gradation. Hence non-communication of an entry is arbitrary, and it has been held by the Constitution Bench decision of this Court in Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, hat Arbitrariness violates Article 14 of the Constitution.

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, otherwise there is violation of the principle of fairness, which is the soul of natural justice. Even an outstanding entry should be communicated since that would boost the morale of the employee and make him work harder.

Learned counsel for the respondent has relied on the decision of this Court in U.P. Jal Nigam and others Vs. Prabhat Chandra Jain and others, . We have perused the said decision, which is cryptic and does not go into details. Moreover it has not noticed the Constitution Bench decision of this Court in Maneka Gandhi v. Union of India (supra) which has held that all State action must be non-arbitrary. otherwise Article 14 of the Constitution will be violated. In our opinion the decision in U.P. Jal Nigam (supra) cannot be said to have laid down any legal principle that entries need not be communicated. As observed in Bharat Petroleum Corporation Ltd. and Another Vs. N.R. Vairamani and Another,

... Observations of Courts are neither to be read as Euclid''s Theorems nor as provisions of the statute, and that too, taken out of their context.

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 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 eliminate the chances of promotion of the incumbent if there is a bench-mark requiring ''very good'' entry. And even when there is no bench-mark, such downgrading can have serious adverse effect on an incumbent''s chances of promotion where comparative merit of several candidates is considered.

Learned counsel for the respondent also relied upon the decision of this Court in Union of India (UOI) and Another Vs. S.K. Goel and Others, and on the strength of the same submitted that only an adverse entry need be communicated to the incumbent. The aforesaid decision is a 2-Judge Bench decision and hence cannot prevail over the 7-Judge Constitution Bench decision of this Court in Maneka Gandhi v. Union of India (supra) in which it has been held that arbitrariness violates Article 14 of the Constitution. Since the aforesaid decision in Union of India v. S.K. Goel (supra) has not considered the aforesaid Constitution Bench decision in Maneka Gandhi''s 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 adverse consequences of non-communication of the entry, and the consequential denial of making a representation against it.

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 destroy the career of an officer which has otherwise been outstanding throughout. This often results in grave injustice and heartburning, and may shatter the morale of many good officers who are superseded due to this arbitrariness, while officers of inferior merit may be promoted.

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 justice, because in substance the ''good'' entry operates as an adverse entry (for the reason given above).

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 the situation and the context.

Lord Esher M.R. in Voinet v. Barrett (1885) 55 LJ QB 39, observed: "Natural justice is the natural sense of what is right and wrong."

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 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.

A large number of decisions of this Court have discussed the principles of natural justice and it is not necessary for us to go into all of them here. However, we may consider a few.

Thus, in A.K. Kraipak and Others Vs. Union of India (UOI) and Others, a Constitution Bench of this Court held: (para 20)

20....The concept of natural justice has undergone a great 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 esse judex propria causa), and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram 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.

(Emphasis supplied)

The aforesaid decision was followed by this Court in K.I. Shephard and Others Vs. Union of India (UOI) and Others, . It was held in this decision that even administrative acts have to be in accordance with natural justice if they have civil consequences. It was also held that natural justice has various facets and acting fairly is one of them.

In Kumaon Mandal Vikas Nigam Ltd. Vs. Girja Shankar Pant and Others, , this Court held (vide para 2):

2.... 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.

(Emphasis supplied)

In the same decision it was also held following the decision of Tucker. L.J. in Russell v. Duke of Norfolk, (1949) 1 All ER 109:

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.

In Union of India and Another Vs. Tulsiram Patel and Others, (vide para 97) a Constitution Bench of this Court referred to with approval the following observations of Ormond, L.J. in Norwest Hoist Ltd. v. Secretary of State for Trade, (1978) I Ch. 201:

The House of Lords and this Court have repeatedly 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 flexible. The question to be asked in every case to determine whether the rules of natural justice have been violated is have the authorities acted fairly?

In Swadeshi Cotton Mills Vs. Union of India (UOI), this Court following the decision in Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, held that the soul of the rule (natural justice) is fair play in action.

In our opinion, 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 he could be eligible for promotion. Non communication of the said entry in our opinion, was hence unfair on the part of the respondent and hence violative of natural justice.

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 in A.K. Kraipak''s case (supra) and K.L. Shephard''s case (supra), some more rules came to be added to the rules of natural justice, e.g., the requirement to give reasons vide S.N. Mukherjee Vs. Union of India, In Maneka Gandhi v. Union of India (supra) (vide paragraphs 56 to 61) it was held that natural justice is part of Article 14 of the Constitution.

Thus natural justice has an expanding content and is not stagnant. It is therefore open to the Court to develop new principles of natural justice in appropriate cases.

In the present case, we are developing the principles of natural justice by holding that fairness and transparency in 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 representation for its up gradation. This in our opinion is the correct legal position even though there may be no Rule/G.O. 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 14 of the Constitution in our opinion requires such communication. Article 14 will override all rules or Government orders.

We further hold that when the entry is communicated to him the public servant should have a right to make a 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 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 State must be a model employer, and must act fairly towards its employees. Only then would good governance be possible.

We, however, make it clear that the above directions will not apply to military officers because the position for them is different as clarified by this Court in Union of India (UOI) and Another Vs. Major Bahadur Singh, . But they will apply to employees of statutory authorities, public sector corporations and other instrumentalities of the State (in addition to Government servants).

In Canara Bank Vs. V.K. Awasthy, 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:

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 man. Natural justice is the administration of justice in a common-sense liberal way. Justice is based substantially on natural ideals and human values.

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. Lord Summer (then Hamilton, 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 and Registration of U.K. v. Spackman (1943) AC 627: (1943) 2 All ER 337, Lord Wright observed that it was not desirable to attempt "to force it into any Procrustean bed.

In State of Maharashtra Vs. Public Concern for Governance Trust and Others, , 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 natural justice would at once come into play.

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 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.

In view of the above, we are of the opinion that both the learned single Judge as well as the learned Division Bench 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.

We are informed that the appellant has already retired from service. However, if his representation for up gradation 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 praying for its up gradation. If the up gradation is allowed, the appellant should be considered forthwith for promotion as Superintending 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.

We, therefore, direct that the ''good'' entry be communicated to the appellant within a period of two months from the date of receipt of the copy of this judgment. On being communicated, the appellant may make the representation, if he so chooses, against the said entry within two months thereafter and the said representation will be decided within two months thereafter. If his entry is upgraded the appellant shall be considered for promotion retrospectively by the Departmental Promotion Committee (DPC) within three months thereafter and if the appellant gets selected for promotion retrospectively, he should be given higher pension with arrears of pay and interest @ 8% per annum till the date of payment". Division Bench of this Court in Writ Appeal No. 452/2010 (Ramgopal Verma v. State of M.P. and others) has followed the aforesaid'' ratio.

In the light of aforesaid. I am not able to uphold the action of the respondents in not communicating the ACRs for the year ending 2003 and 2004. In all fairness, before passing the impugned order. Annexure P/1, respondent Jawaharlal Nehru Krishi Vishwavidyalaya should have communicated the ACRs to the petitioner and should have permitted him to submit detailed representation against it. The representation was also required to be decided in accordance with law. Thus, I am unable to uphold the impugned order Annexure P/1 and the stand of Jawaharlal Nehru Krishi Vishwavidyalaya that the said ACRs were not required to be communicated.

Thus, this petition is allowed with following directions:

(i) The respondents shall communicate the ACRs for the year ending 2003 and 2004 to the petitioner within one month from the date of production of certified copy of this order:

(ii) Petitioner shall submit his representation against those ACRs within 15 days therefrom. The representation of the petitioner shall be considered and decided by the competent authority within 30 days therefrom. The outcome of representation shall be communicated to the petitioner.

(iii) The petitioner although has pleaded about some illegal recovery in the petition but has not prayed anything with regard to aforesaid pleadings. Therefore, liberty is reserved to the petitioner to prefer a representation in this regard to the competent authority.

(iv) It is made clear that the petitioner should not be made a pendulum by the respondents by shifting the responsibility to each other. It will be the joint responsibility of respondent No. 1 and respondent No. 1-A to ensure compliance of this order.

Petition stands allowed to the extent indicated above.