CIVIL WRIT JURISDICTION CASE No.733 OF 2010 (In the matter of an application under Articles 226 & 227 of the Constitution of India) ******** A.RAVINDRA NATH REDDY, son of Sri A Venkatarami Reddy, resident of Moh Gooty, Police Station Gooty, District Anantpur (Andhra Pradesh), and at present posted at Patna as Commissioner ofIncome Tax and residing at Income Tax Rest House, Revenue Building, Birchand Patel Path, PS Kotwali, District Patna ………. Petitioner Versus 1. THE UNION OF INDIA , through the Secretary, Ministry of Finance, Department of Revenue, Government of India, North Block, New Delhi 2. The Secretary, Department of Revenue, Government of India, North Block, New Delhi 3. The Chairman, Central Board of Direct Taxes, Ministry of Finance, Departmentof Revenue, Govt. of India, New Delhi 4. The Chairman, UPSC, Dholpur House, New Delhi 5. The Secretary, ACC, Department of personnel and Training, Govt. of India, North Block, Central Secretariat, New Delhi 6. The Chief Commissioner of Income Tax, Central Revenue Building, Birchand Patel Path, Patna …………… ……..Respondents ********* For the Petitioner : Mr. Ajit Sinha, Senior Advocate For the Union of India : Mr. Sunil Kumar, Advocate For respondent no.4 : Mr. Kaushal Kishore Jha, Advocate P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL S K Katriar & Kishore K Mandal, JJ. This writ petition is directed against the order dated 7.1.2010, passed by the Central Administrative Tribunal, Patna Bench, in OA No.8 of 2010 (A R N Reddy vs. Union of India & Ors.), whereby the original application preferred by the present petitioner has in substance been disposed of on the ground that it is premature. 2. The basic facts for the disposal of this writ petition are not in dispute and may be briefly indicated. The petitioner was appointed to the Indian Revenue service in 1977. He was promoted as Commissioner of 2 Income Tax on 27.6.2001. The combined gradation list of the department as on 10.1.2007, showed the petitioner at sl.no.143. The petitioner was on authorized leave from 25.6.2007 to 13.7.2007, with the permission to prefix 23/24.6.2007, and suffix 14/15.7.2007. The petitioner did not report for duties on 16.7.2007, and allegedly continued on unauthorized leave till 21.9.2008. He reported for duty on 22.9.2008. The Departmental Promotion Committee (DPC, in short) met on 23.10.2009, and considered the cases of the eligible candidates for the purpose of promotion to the next higher rank of Chief Commissioner of Income Tax. It had taken into account the future vacancies occurring upto March 2010, and recommended 47 Commissioners of Income Tax for promotion. The petitioner did not figure in the list of recommendations and indeed 35 persons below him were recommended for promotion. In view of the procedure prescribed by the Department of Personnel and Administrative Reforms, Govt. of India, the Confidential Character Roll (CCR) of the candidate for promotion at this level must record `very good’ for the preceding five years. The relevant Office Memorandum dated 8.2.2002, is marked Annexure -2 to the writ petition. 2.1) Paragraph 3(b) of the writ petition summaries the position obtaining in the service records of the petitioner and is reproduced hereinbelow:- 1995-96 very good 1996-97 very good 1997-98 very good 1998-99 very good 1999-2000 very good 2000-01 very good 2001-02 good not communicated 2002-03 good not communicated 2003-04 good not communicated 2004-05 very good 2005-06 very good 2006-07 not written 2007-08 not written 2008-09 not written 2008-09 very good 3 The petitioner’s CCRs could not be written for the periods 2006- 2007, and 2007-2008, because of his continued absence from duties indicated hereinabove. Therefore, the DPC had taken into account the CCRs for the period 2001-02 to 2005-06. Aggrieved by the recommendation of the DPC, the petitioner approached the Tribunal which has been rejected on various grounds, namely, recommendations of the DPC are not binding on the Government, a major penalty charge-sheet for unauthorized absence has been served on him, and the petitioner’s representation is pending consideration with the Government. Hence this writ petition. 3. While assailing the validity of the recommendations of the DPC as well as the order of the Tribunal, learned counsel for the petitioner submits that in view of the rigorous bench mark prescribed by the Govt. of India, it is incumbent on the Department to convey the entries which are `good’ because, in the circumstances of the case and in view of the relevant office memorandum, this becomes adverse to the candidate. In his submission, the entries of `good’ for the period 2001-02, 2002-03, and 2003-04, were not communicated to the petitioner to enable him to represent against the same. He relies on the following judgments:- (i) [(2007) 6 SCC 704 (Union of India v. Sangram Kehari Nayak) (ii)[(2008) 8 SCC 725] (Dev Dutt v. Union of India) (iii) The decision dated 22.10.2008 of the Supreme Court in SLP© No.26556 of 2004 (Abhijit Ghose Dastidar v. Union of India (iv) A judgment of the present Division Bench dated dated 11.2.2010, in CWJC No.4325 of 2007 (Union of India vs.S P Singh) Learned counsel for the petitioner adds with emphasis that the two of the similarly circumstanced candidates who had been considered by the same DPC moved the Central Administrative Tribunal, Principal Bench. He 4 relies on the orders of those cases which are as follows:- (i) Order dated 16.2.1990, in OA No.14 of 2010 (Pomela B Prasad vs. Union of India) (ii) Order dated 16.2.2010, in OA No.99 of 2010 (Rabindra Kumar Rai vs. Union of India) Learned counsel for the petitioner in the same vein relies on the judgment of the Supreme Court in Berger Paints India Ltd. Vs. CIT [(2004) 12 SCC 42], which lays down to the effect that consistency is the hall-mark of the Judicature. He also submits that sealed-cover procedure is impermissible in the present case. The charge-sheet is a post-DPC event and, therefore, cannot be taken into account in the present case. He relies on relevant portion of paragraph-4 of G.I.,Dept. of Personnel & Training. O.M.No. 22011/2/99- Estt.(A), dated 21st November, 2002, which is reproduced hereinbelow:- Sealed cover procedure not applicable to review DPC.- A question whether the sealed cover procedure is to be followed by a Review DPC has been under consideration of this Department in the light of the decision of the Central Administrative Tribunal in certain cases. The matter has been considered in consultation with the Ministry of Law and it has been decided that the sealed cover procedure as contained in the OM, dated 14.9.1992 cannot be resorted to by the Review DPC if no departmental proceedings or criminal prosecution was pending against the Government servant concerned of he/she was not under suspension at the time of meeting of the original DPC or before promotion of his junior on the basis of the recommendations of the original DPC.” In this connection, he relies on the judgment of the Supreme Court in Union of India vs. Sangram Keshari Nayak (supra). He has also attempted to take us through the factual aspects of the departmental proceeding. 4. Mr. Sunil Kumar, learned counsel appearing for the Union of India, has supported the impugned action. 5. Mr. Kaushal Kishore Jha has also supported the impugned action. He submits that the judgment of the Supreme Court in Union of India vs. Sangram Keshari Nayak, and Deo Dutt v. Union of India, and other 5 judgments on that point, have to be seen and applied in the perspective. He also submits that a proceeding for major penalty has already been initiated against the petitioner and it may not be right to overlook the same. He submits in the same vein that any attempt in the present proceeding to justify continued absence is impermissible. 6. We have perused the materials on record and considered the submissions of learned counsel for the parties. Learned counsel for the petitioner has strongly contended that, in view of the bench mark as per the relevant office memorandum, the candidate must have `very good’ remarks for the preceding five years. Therefore, his remarks `good’ for the three years in question, which were not communicated to him, could not have been taken into account. He relies on paragraph -11 of the judgment in Union of India vs. Sangram Keshari Nayak (supra), which is reproduced hereinbelow for the facility of quick reference:- “11. Promotion is not a fundamental right. Right to be considered for promotion, however, is a fundamental right. Such a right brings within its purview an effective, purposeful and meaningful consideration. Suitability or otherwise of the candidate concerned, however, must be left at the hands of the DPC, but the same has to be determined in terms of the rules applicable therefor. Indisputably, the DPC recommended the case of the respondent for promotion. On the day on which, it is accepted at the Bar, the DPC held its meeting, no vigilance enquiry was pending. No decision was also taken by the employer that a departmental proceeding should be initiated against him.” It appears to us in the instant case that the petitioner was undoubtedly considered for promotion. It is another matter that, according to the petitioner, the remarks `good’ were not communicated to him and, therefore, the same could not have been taken into account. 7. The petitioner has more appropriately relied on the judgment of the Supreme Court in Deo Dutt v. Union of India (supra), paragraphs- 9, 16, and 17 of which are reproduced hereinbelow:- “9. In the present case the benchmark (i.e the essential requirement) 6 laid down by the authorities for promotion to the post of Superintending Engineer was that the candidate should have “very good” entry for the last five years. Thus in this situation the “good” entry in fact is an adverse entry because it eliminates the candidate from being considered for promotion. Thus, nomenclature is not relevant, it is the effect which the entry is having which determines whether it is an adverse entry or not. It is thus the rigours of the entry which is important, not the phraseology. The grant of a “good” entry is of no satisfaction to the incumbent if it in fact makes him ineligible for promotion or has an adverse effect on his chances.” “16. In our opinion if the office memorandum dated 10/11.9.1987, 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 to get some other benefit. For example, if the benchmark 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 the incumbent refused to do sycophancy of his superior, or because of caste or communal prejudice, or to for some other extraneous consideration.” “17. In our opinion, every entry in the ACR 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 upgradation. Hence, non- communication of an entree is arbitrary, and it has been held by the Constitution Bench decision of this Court in Maneka Gandhi v. Union of India that arbitrariness violates Article 14 of the Constitution.” It is thus evident that, in view of the latest pronouncement of the Supreme Court, any remark less than `very good’ has to be communicated to the concerned officer to enable him to represent his version. The same was admittedly not done in the instant case. We cannot fail to observe that the law has for the first time been propounded by the Supreme Court in Deo Dutt vs.Union of India, before which `good’ remark was not treated to be an adverse remark and, therefore, not required to be conveyed to the candidate. One cannot overlook this aspect of the matter and, therefore, the requisite leeway has to be afforded to the Department. In fact, the Supreme Court in Deo Dutt’s case 7 (supra) has provided the requisite guidelines, paragraphs -43 and 44 of which are relevant and are reproduced hereinbelow:- “43. We are informed that the appellant has already retired from service. However, it his representation for upgradation of the “good” entry is allowed, he may benefit in his pension and get some arrears. Hence we direct that the “good” entry of 1993-1994 be communicated to the appellant forthwith and he should be permitted to make a representation against the same praying for its upgradation. If the upgradation 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.” “44. We, therefore, direct that “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.” 8. We, therefore, direct that the respondent authorities shall communicate to the petitioner the entries `good’, or, better say all the entries below the bench-mark, which have been taken into account, or may be taken into account, to reconsider the case of the petitioner’s promotion, and pass a final order in accordance with law on the petitioner’s representation, if submitted. We adopted the same course in our judgment in Union of India vs. S P Singh (supra). 9. Learned counsel for the petitioner has also relied upon on a few other judgments, particularly the orders of the Principal Bench, in the case of Pomela B Prasad (supra), and Abhijit Ghosh Dastidar (supra), whereby the authorities have been directed to reconsider their cases after ignoring the entries `good’, because those were never communicated to those petitioners. The orders of the Central administrative Tribunal may or may not be relevant before 8 the High Court, but we must fairly indicate the spirit in which the learned counsel for the petitioner has placed reliance on the same. He relies on those cases to establish that uniformity of administration of justice demands that the same course of action may be adopted in the present case also. Selective implementation is never in the interest of justice. Paragraph-12 of the judgment in Berger Paints India Ltd. Vs.CIT (supra), relied on by him is reproduced hereinbelow:- “12. In view of the judgments of this Court in Union of India v. Kaumudini Narayan Dalal, CIT v Narendra Doshi, and CIT v Shivsagar Estate the principle established is that if the Revenue has not challenged the correctness of the law laid down by the High Court and has accepted it in the case of one assessee, then it is not open to the Revenue to challenge its correctness in the case of other assesses, without just cause.” We have given our thoughtful consideration to this aspect of the matter and regret our inability to accede to the submission pre-eminently for the reason that the petitioner was allegedly on unauthorized leave for the period 16.7.2007 to 21.9.2008. It covers a period of 14 months. It is prima facie difficult to countenance such a situation - is the petitioner under any impression that he is in service only for the personal benefits of salary and perquisites, or to serve the Government. In that view of the matter, we do not find fault with initiation of departmental proceeding for major penalty against the petitioner. The departmental proceeding shall continue in accordance with law. 10. There is yet another aspect of the matter which needs consideration. Relying on the office memorandum dated 21.11.2002, and reproduced in paragraph 3 hereinabove, learned counsel for the petitioner contended that sealed-cover procedure cannot be followed in the present case because, no departmental proceeding was pending on 23.10.2009 , the date on which the DPC had met. We regret our inability to accede to the submission for the reason that the period of alleged unauthorized absence for which the charge- sheet has been issued covers the period 16.7.2007 to 21.9.2008, which is 9 obviously anterior to the date on which the DPC had met. The decision to initiate the proceeding had been taken earlier, and it is a fortuitous circumstance that the charge-sheet was served on a later date. The position may have been different had the alleged acts of omission and commission were of a later date. 11. The writ petition is disposed of with the following directions :- (i) Let the relevant entries below the bench-mark be conveyed to the petitioner to enable him to represent which shall be considered and disposed of in accordance with law. In case of any doubt or difficulty, the authorities shall be guided by the directions in the judgment of Deo Dutt vs. Union of India (supra). (ii) The departmental proceeding against the petitioner shall continue in accordance with law. (iii) The petitioner’s case for promotion shall be considered after the petitioner’s representation as per (i) above is disposed of. (iv) It will be open to the authorities to follow Sealed-cover Procedure at the appropriate stage and in accordance with law. In the facts and circumstances of the case, there shall be no order as to costs. ( S K Katriar ) ( Kishore K Mandal ) Patna High Court, Patna The 5th of March 2010 NAFR/mrl