CIVIL WRIT JURISDICTION CASE No.4325 OF 2007 (In the matter of an application under Articles 226 and 227 of the Constitution of India) . THE UNION OF INDIA, through the Secretary, Department of Posts, Dak Bhawan, Sansad Marg, New Delhi -110001 2. The Secretary, Department of Posts, Dak Bhawan, Sansad Marg, New Delhi -110001 ….. Petitioners Versus 1. SRI S.P.SINGH , S/O Late Bhagwati Singh R/O 4-Anne Marg, Patna- 800001 …Respondent 1s set 2. Mr. T S Govindrajan, CPMG, Andhra Pradesh Circle, Hyderabad (A.P.) 3. Mr. Vatsala Raghu, CPMG, Tamil Nadu Circle, Chennai (T.N.) …Respondents 2nd set …Respondents ******** For the Petitioners : Mr. Manan Kumar Mishra, Sr. Advocate M/s Ajay Dubey, Anjani Parashar, Advocates For the Respondent No1. : Mr. Y V Giri, Sr. Advocate M/s Sanjeev Kumar, Vikas Ratan Bharti, Advocates **************** 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, J. J. This writ petition is directed against the following orders, passed by the Central Administrative Tribunal, Patna Bench, Patna :- (i) Order dated 30.11.2005 (Annexue 1), passed in OA No. 308 of 2005 (S P Singh vs. The Union of India & Others); and (ii) order dated 4.1.2007 (Annexure 2), passed in RA No.51 of 2006 with MA 688 of 2006 (The Union of India vs.S P Singh), whereby the application of the present petitioners for review of the said order dated 30.11.2005 (Annexure 1), has been rejected. 2. A brief statement of facts essential for the disposal of this writ petition may be indicated. Respondent no.1 herein joined the Indian Postal Service way back in 1970. He rose from step to step, and maintained very good record of service. A stage reached in his career when he was considered for promotion to the post of Principal Chief Post Master General, Govt. of India. According to the prescribed procedure, the Departmental Promotion Committee (DPC, in short), had taken the following periods for consideration of the case of the respondents herein:- 2 (i) 1999-2000 (ii)2000-2001 (iii)2001-2002 (iv)2002-2003 (v) 2004-2004 The entries in the ACRs of respondent no.1 for three years 1999-2000, 2002-2003, and 2003-2004, recorded `very good’. The ACRs for the remaining two periods, namely, 2000-2001 and 2001-2002, recorded `good’, which were not communicated to him. The bench mark adopted by the DPC was that, in view of the position that it is the top-most position in the department in the country, the ACR of the candidate must record `very good’ in all the five periods in question. In view of the position that ACR of respondent no.1 for the two years recorded `good’, he was ousted at the very inception leading to the aforesaid Original Application. 3. The learned Tribunal has, inter alia, held that the entries `good’ for the two periods in question in the context be taken to be adverse because of the high and the strict bench mark adopted by the DPC. The Tribunal, therefore, concluded that the entries `good’ in the context should be taken to be adverse and ought to have been communicated to respondent no.1. The Tribunal has observed as follows in paragraph 15 of the impugned order:- “15. We accordingly direct a Review Departmental Promotion Committee meeting to consider the claim of the applicant by ignoring the remarks `Good’ which were not communicated to the applicant for the relevant period and to re-determine then finding on the basis of other available entries/remarks in the Annual Confidential Reports of the officer in accordance with decisions of the Hon’ble Supreme Court as well as other Courts, as discussed above. There will be no order as to costs.” 4. We have perused the materials on record and considered the submissions of learned counsel for the parties. We must at the very outset indicate that respondent no.1 seems to have maintained a very good record of service and when he was approaching consideration of his case for the top-most post of the department, he was awarded `good’ for the two years in question which has had the pernicious effect of eliminating him from the zone of consideration. We feel unhappy at this state of affairs. It is on account of such cases that the courts have been imposing stricter standards for maintenance of Character Rolls, lest officers 3 like respondent no.1 do not suffer. Learned counsel for respondent no.1 has rightly relied on the judgment of the Supreme Court in Dev Dutt vs. Union of India [(2008) 8 SCC 725], paragraphs 9, 16, and 17 are relevant in the present context and are set out hereinbelow for the facility of quick reference:- “9. In the present case the benchmark (i.e the essential requirement) 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. 5. Respondent no.1 has superannuated in the month of April 2006, and has entered the evening of his life. Therefore, there is now no question of his functioning in the office that he seems to have deserved while in service and was deprived of the same because of the entries for reasons we are not able to decipher from the materials before us. Therefore, it is now only the question of notional recognition, and monetary benefits. We are in this connection guided by paragraphs 43 and 44 of the judgment of the Supreme Court in Dev Dutt vs. Union of India (supra), which are reproduced hereinbelow:- 4 “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.” We underscore the observations of the Supreme Court in paragraph 44 of the judgment about grant of interest. 6. We are convinced that the Tribunal has rightly allowed the original application of respondent no.1 and has directed for reconsideration of the matter. We, however, modify the operative portion of the order of the Tribunal and put it in line with the aforesaid observations of the Supreme Court in Dev Dutt’s case. We accordingly direct the authorities to issue show-cause notice strictly in terms of paragraphs 43 and 44 of the aforesaid judgment, and take a final decision in accordance with law. This Court will be pleased if the entire process is completed within three months of receipt of a copy of the present order. 7. In the result, we dismiss the writ petition with aforesaid modification. ( S K Katriar ) ( Kishore K Mandal ) Patna High Court, Patna The 11th February 2010 NAFR/ mrl 5