Sunita Sharma vs Oriental Bank of Commerce and Others

Ajay Tewari, J.—The petitioner has received the information that she has been given ''average rating'' for the year 2008-09. She obtained this information under Right to Information Act, 2005 which also confirmed the fact that her representation (Annexure P-13) against the said remarks was rejected on the ground that since only below average rating has to be communicated and thus, the petitioner could not be communicated an average report. Learned counsel for the petitioner has relied upon Dev Dutt Vs. Union of India (UOI) and Others, whereby their lordships held as follows:-

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 upgradation. 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 these circumstances, it has to be held that the order rejecting the representation was passed on a wrong premise. Resultantly, the impugned order is set aside and direction is issued to the competent authority i.e. respondent No. 2 to consider the representation (Annexure P-13) and decide the same afresh on merits. Let necessary exercise be completed within a period of two months from the date of receipt of a certified copy of this order.