W.P.(C)6013/2010 & conn. Matters Page 1 of 18 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved On: 05th October, 2010 Judgment Delivered On: 08th October, 2010 + W.P.(C) 6013/2010 UOI ..... Petitioner Through Mr.VSR Krishna, Adv. versus KRISHNA MOHAN DIXIT ..... Respondent Through Mr.P.P.Khurana, Sr.Adv., with Ms.Tamali Wad, Adv. + W.P.(C) 6039/2010 UOI AND ORS ..... Petitioners Through Mr.VSR Krishna, Adv. versus K HARI PRASADA RAO ..... Respondent Through Ms.Paurami Shethi, Mr.Pardeep Dahiya, Advs. + W.P.(C) 6554/2010 UOI ..... Petitioner Through Mr.VSR Krishna, Adv. versus R BALA NAIK AND ORS .... Respondents Through Ms.Paurami Shethi, Mr.Pardeep Dahiya, Advs. + W.P.(C) 6696/2010 UOI ..... Petitioner Through Mr.VSR Krishna, Adv. versus DEVINDER SINGH CHOUDHARY AND ORS .... Respondents Through Ms.Paurami Shethi, Mr.Pardeep Dahiya, Advs. W.P.(C)6013/2010 & conn. Matters Page 2 of 18 + W.P.(C) 6723/2010 UNION OF INDIA ..... Petitioner Through Mr.VSR Krishna, Adv. versus RAVINDRA KUMAR RAI & ORS .... Respondents Through Mr.Pardeep Dahiya, Adv. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE MOOL CHAND GARG 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to Reporter or not? 3. Whether the judgment should be reported in the Digest? MOOL CHAND GARG, J 1. This common order shall dispose of the batch of the aforesaid writ petitions filed by Union of India, the petitioner herein aggrieved of the order passed by the Central Administrative Tribunal (hereinafter referred to as “the Tribunal”) dated 22.10.2009 in O.A.Nos.2349/2009, 2377/2009, 2353/2009, the order dated 16.02.2010 in O.A.No.99/2010 and the order dated 21.08.2009 in O.A.No. 586/2009 giving directions to ignore some of the ACRs and to consider some other ACRs for the purpose of considering the case of the respondents who all are the members of Indian Revenue Service working as CIT and CCIT for further promotion by a review DPC on the ground that the ACRs in question were below bench mark “very good” and were not communicated to the respondents at the relevant time. The other reason given in some of the cases is that the adverse ACRs being three years old prior to the holding of the DPC could not be considered in view of the Memorandum dated 11.05.1990 issued by the Department of Personnel and Training (DoPT). Additionally reason to ignore the adverse ACR is that if the reporting officer and reviewing officer stands retired, there was no point in asking the respondent to make a representation. 2. The main decision has been given by the Tribunal in the case of W.P.(C)6013/2010 & conn. Matters Page 3 of 18 Krishna Mohan Dixit (OA No. 586/2009) dated 21.08.2009. The said Judgment has been followed by the tribunal in other cases also. 3. The petitioners assail the decision of the tribunal inter alia, on the following grounds:- (i) that the directions of the Learned Tribunal are not in consonance with law or for that matter the guidelines on the subject of making representations against the deemed adverse remarks in the ACR of an officer. It is submitted that the Tribunal without appreciating the guidelines issued by the nodal department i.e. Department of personnel and Training allowed the application and has passed the above directions by relying upon the orders dated 05.08.2009 passed by the Tribunal in the case of Sanjay Kumar Vs. Union of India and Ors. wherein the Ld. Tribunal took the view that the ACR for the year 2002-03 in which a grading of „good‟ was recorded in respect of the applicant therein should not be considered ignoring ratio of the full bench decision of the Tribunal in OA No.24 of 2007 decided on 07.05.2008 in the matter of Ashok Kumar Aneja Vs. Union of India and Ors. wherein it has been held that ACRs with below benchmark gradings should be communicated to the officer for his representation. It is submitted that the Ld. Tribunal has erred in not relying upon the binding precedent set by a full bench which it is bound to follow as a judicial precedent. (ii) As a matter of fact the decisions of the Hon‟ble Supreme Court in CA No.7631 of 2002 decided o 23.05.2008 in the case of Dev Dutt Vs. Union of India, 2008 (8) SCC 725 had ruled that the government be directed to convey to the concerned person the ACR, which may be below the benchmark and to have representation from the concerned officer and if in consideration thereof the ACR of the W.P.(C)6013/2010 & conn. Matters Page 4 of 18 officer is upgraded commensurate with the benchmark, consider his case for promotion to the higher post. In the instant case however for no apparent reason the Ld. Tribunal directed ignoring of ACRs of the respondent which are below benchmark and for consideration of the respondent‟s case for promotion by a review DPC by ignoring below bench mark gradings. The directions of the Ld. Tribunal are per se illegal and not proper. (iii) That the Tribunal has totally misdirected itself in passing the impugned directions in as much as in view of the DOPT instructions relating to making of representations against the adverse remarks, the said representations would not lie to either the reporting or review officers but to a still higher officer. Under such circumstances the retirement/ superannuation of the reporting or reviewing officer has nothing to do with the consideration of the representation against the below benchmark grading. (iv) That apart the Tribunal has also erred in concluding that the ratio of the Hon‟ble Supreme Court judgment in the case of Abhijit Ghosh Dastidar Vs. Union of India and Ors. (SLP No.26556/2004 decided on 22.10.2008) would apply to the facts and circumstances of the case of the respondent also. It is submitted that the petitioner in that case had already superannuated on the date when the judgment was pronounced and it is in such circumstances that the Hon‟ble Supreme Court has passed the aforesaid directions by exercising its inherent powers. In the present case the respondent are still in service and therefore to invoke the ratio of the judgment in Abhijit Ghosh Dastidar is not correct or proper. W.P.(C)6013/2010 & conn. Matters Page 5 of 18 (v) It is submitted that retirement of an officer has nothing to do with the consideration of the representations against below benchmark gradings/adverse remarks since the said representations do not lie either to reporting or reviewing officers but lie to a higher officer over and above the aforesaid officers. 4. According to the petitioners reliance placed in case of Shri Krishna Mohan Dixit Vs. Union of India as also in other cases upon the Office Memorandum dated 11.05.1990 after coming into force of the judgment in the case of Dev Dutt was highly improper as the said memorandum lost its ground and is no more applicable in the facts of these cases inasmuch the procedure now laid down in Dev Dutt’s case is to communicate ACRs which were below the benchmark to the respondent so as to afford an opportunity to them for making a representation if they so desire before the higher authority to consider those representation and to reappraise the same and then to put up the upgraded ACR if any before the review DPC for considering the case of the respondents for further promotion. It is submitted that despite non-availability of Reporting Officer & Reviewing Officer, it is for the Higher Authority to review the same in terms of the Office Memorandum No. 30.01.1978 G.I.,D.P.&A.R.,O.M.No.21011/1/77-Ests. and O.M. No.51/14/60-Estt.(A), dated the 31st October, 1961). Relevant portion is reproduced below: “23. To whom representation lies.-Representation against adverse remarks will lie to the authority immediately superior to the countersigning authority, if any, or to the reporting officer. If the immediate superior authority has already reviewed the confidential report in question and has also expressed his view either agreeing or disagreeing with the adverse remarks recorded and accepted by the countersigning authority, the representation should, in that event, lie to the next higher authority.” 5. It is thus submitted that merely because the Reporting Officer/ Reviewing Officer is not available on account of their retirement, the Tribunal went wrong in holding that that those ACRs where Reporting officer/ Reviewing Officer are not available should be ignored. W.P.(C)6013/2010 & conn. Matters Page 6 of 18 6. We may observe that the Hon‟ble Supreme Court in E.P.Rayappa Vs. State of Tamil Nadu (1974) ILLJ172SC and Maneka Gandhi Vs. Union of India (1978) SCR 621 has observed that Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. It requires that State action must not be arbitrary but must be based on some rational and relevant principle which is non-discriminatory; it must not be guided by an extraneous or irrelevant consideration, because that would be denial of equality. The principle of reasonableness and rationality which is legally as well as philosophically an essential element of equality or non- arbitrariness is protected by Article 14 and it must characterize every State action, whether it be under authority of law or in exercise of executive power without making of law. The State cannot, therefore, act arbitrarily in entering into relationship, contractual or otherwise with a third part, but its action must conform to some standard or norm which is rational and non-discriminatory. 7. Keeping the aforesaid principles in view, the Hon‟ble Supreme Court in the case of Dev Dutt made the following observations: “5. The stand of the respondent was that according to para 6.3(ii) of the guidelines for promotion of departmental candidates which was issued by the Government of India, Ministry of Public Grievances and Pension, vide Office Memorandum dated 10.4.1989, for promotion to all posts which are in the pay scale of Rs. 3700-5000/- and above, the bench mark grade should be 'very good' for the last five years before the D.P.C. In other words, only those candidates who had 'very good' entries in their Annual Confidential Reports (ACRs) for the last five years would be considered for promotion. The post of Superintending Engineer carries the pay scale of Rs. 3700- 5000/- and since the appellant did not have 'very good' entry but only 'good' entry for the year 1993-94, he was not considered for promotion to the post of Superintending Engineer. 6. The grievance of the appellant was that he was not communicated the 'good' entry for the year 1993-94. He submitted that had he been communicated that entry he would have had an opportunity of making a representation for upgrading that entry from 'good' to 'very good', and if that representation was allowed he would have also become eligible for promotion. Hence he submits that the rules of natural justice have been violated. 9. In the present case the bench mark (i.e. the essential requirement) laid down by the authorities for promotion to W.P.(C)6013/2010 & conn. Matters Page 7 of 18 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. 10. Hence, in our opinion, the 'good' entry should have been communicated to the appellant so as to enable him to make a representation praying that the said entry for the year 1993-94 should be upgraded from 'good' to 'very good'. Of course, after considering such a representation it was open to the authority concerned to reject the representation and confirm the 'good' entry (though of course in a fair manner), but at least an opportunity of making such a representation should have been given to the appellant, and that would only have been possible had the appellant been communicated the 'good' entry, which was not done in this case. Hence, we are of the opinion that the non-communication of the 'good' entry was arbitrary and hence illegal, and the decisions relied upon by the learned Counsel for the respondent are distinguishable. 23. 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). 37. 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. 43. We are informed that the appellant has already retired from service. However, if his representation for W.P.(C)6013/2010 & conn. Matters Page 8 of 18 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 1993-94 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.” 8. To summarize, the Hon‟ble Supreme Court gave following directions to deal with the adverse ACRs (below bench mark ACR), relevant for consideration by a DPC to consider the incumbent for further promotion :- (i) The un-communicated adverse ACRs (those which are below bench mark) should be communicated to him for enabling him an opportunity of making representation to assail those entries such as if the entry was „Good‟ then to get it upgraded to „Very Good‟, the bench mark; (ii) The representation made, if any, should then be considered by the Higher Authority who would certainly entitled to reject the representation and confirm the „Good‟ entry (though of course in a fair manner); (iii) The authority to decide representation must be an authority higher than the one who recorded subject entry, so as to avoid the principle of appeal from ceaser to ceaser. (iv) If the ACR is upgraded, the review DPC to be held for considering the case of the incumbent afresh for promotion for the relevant year and in case, the incumbent is found fit then to promote him forthwith with retrospective effect. Even if the person has retired when considered by the review DPC for promotion, he would be entitled to all consequential benefits. 9. Subsequently, the Hon‟ble Supreme Court also dealt with the issue in Abhijit Ghosh Dastidar’s case. However, in that case except relying upon the observations made in Dev Dutt’s case (supra), no W.P.(C)6013/2010 & conn. Matters Page 9 of 18 new law has been laid down. The judgment has also not distinguished Dev Dutt’s case (supra), yet some observations in that judgment are reproduced hereunder:- “5. According to the appellant, the adverse entries namely "good" were not communicated. The said aspect ought not to have been considered while considering his promotion. In support of the above claim, he relied on the decision of this Court in Dev Dutt v. Union of India and Ors. :(2008) 8 SCC 725 . 6. Pursuant to the direction of the CAT, Patna Bench on 09.09.2002 review of D.P.C. was held and the appellant was not found suitable for promotion. In March, 2003, there was a regular D.P.C. and the appellant was found fit for promotion with the same entries and accordingly promoted to Higher Administrative Grade Group-A and later retired from service. 8.Coming to the second aspect, that though the benchmark "very good" is required for being considered for promotion admittedly the entry of "good" was not communicated to the appellant. The entry of 'good' should have been communicated to him as he was having "very good" in the previous year. In those circumstances, in our opinion, non-communication of entries in the ACR of a public servant whether he is in civil, judicial, police or any other service (other than the armed forces), it has civil consequences because it may affect his chances for promotion or get other benefits. Hence, such non- communication would be arbitrary and as such violative of Article 14 of the Constitution. The same view has been reiterated in the above referred decision relied on by the appellant. Therefore, the entries "good" if at all granted to the appellant, the same should not have been taken into consideration for being considered for promotion to the higher grade. The respondent has no case that the appellant had ever been informed of the nature of the grading given to him. 9. Learned Counsel appearing for the appellant has pointed out that the officer who was immediately junior in service to the appellant was given promotion on 28.08.2000. Therefore, the appellant also be deemed to have been given promotion from 28.08.2000. 10.Since the appellant had retired from service, we make it clear that he is not entitled to any pay or allowances for the period for which he had not worked in the Higher Administrative Grade Group-A, but his retrospective promotion from 28.08.2000 shall be considered for the W.P.(C)6013/2010 & conn. Matters Page 10 of 18 benefit of re-fixation of his pension and other retrial benefits as per rules.” 10. In view of the aforesaid decision it can simply be observed that the Hon‟ble Supreme Court while reiterating the view taken by it in DevDutt’s case (supra), in the peculiar facts of the case where the incumbent stood superannuated took a view that in that particular case there was no necessity to call for a representation from the incumbent with respect to adverse ACRs and just to treat him as promoted as his juniors have also been promoted and he was promoted even regularly by a subsequent DPC of course without any pay or allowances for the period for which he had not worked in the higher administrative grade. Considering the law laid down by the Hon‟ble Supreme Court itself, suffice would it be to state that such observations cannot be considered as a binding precedent and would have to be taken as observations made in the peculiar facts of the case. 11. Reliance is placed upon the judgment of the Supreme Court in the case of State of U.P. & Anr. Vs. Synthetics and Chemicals Ltd. and Anr. (1991) 4 SCC 139. The relevant observations are in para 41 of the order which reads as under:- “41. Does this principle extend and apply to a conclusion of law, which was neither raised nor preceded by any consideration. In other words can such conclusions be considered as declaration of law? Here again the English Courts and jurists have carved out an exception to the rule of precedents. It has been explained as rule of sub-silentio. A decision passed sub-silentio, in the technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the Court or present to its mind' (Salmond 12th Edition). In Lancaster Motor Company {London) Ltd. v. Bremith Ltd. 1941 1KB 675, the Court did not feel bound by earlier decision as it was rendered 'without any argument, without reference to the crucial words of the rule and without any citation of the authority'. It was approved by this Court in Municipal Corporation of Delhi v. Gurnam Kaur AIR1989SC38 . The Bench held that, 'precedents sub-silentio and without argument are of no moment'. The Courts thus have taken recourse to this principle for relieving from injustice perpetrated by unjust precedents. A decision which is not express and is not founded on reasons nor it proceeds on consideration of W.P.(C)6013/2010 & conn. Matters Page 11 of 18 issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141 Uniformity and consistency are core of judicial discipline. But that which escapes in the judgment without any occasion is not ratio decedendi. In Shama Rao v. State of Pondicherry AIR 1967 SC 1680 it was observed, 'it is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles, laid down there-in'. Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent. Restraint in dissenting or overruling is for sake of stability and uniformity but rigidity beyond reasonable limits is inimical to the growth of law.” 12. We are conscious of the fact that dismissing certain writ petitions in limine, this Bench had upheld orders passed by the Tribunal where in the absence of the Reporting Authority/ Reviewing Authority, following Abhijit Ghosh Dastidar’s case directions were issued by the Tribunal to altogether ignore the below benchmark ACRs and consider the further preceding year ACR which were up to the benchmark. But we must confess that nobody drew our attention to paragraph 37 of the decision in Dev Dutt’s case as also to the O.M. dated 30.01.1978, relevant extract whereof has been noted in para 4 above. The said decisions are dismissals in limine without reasons and hence are not binding precedents. Abhijit Ghosh Dastidar’s case, as noted by us hereinabove follows the law laid down in Dev Dutt’s case, but makes a departure with respect to the final direction issued for the reason the Supreme Court found that Abhijit Ghosh Dastidar had superannuated and it was in said context the Supreme Court did not direct further follow up action as per the law laid down by the Supreme Court in Dev Dutt’s case. It is apparent that the direction in Abhijit Ghosh Dastidar’s case has to be traced through the power of the Supreme Court under Article 142 of the Constitution of India. 13. Now coming to the Office Memorandum dated 11.05.1990 issued by the DOPT we find that it reads as under:- “12.1 :Where the DPC find that the adverse remarks in the confidential Report of an officer have not been communicated to him but the adverse remarks are of sufficient gravity to influence their assessment of the officer concerned, then the Committee shall defer consideration of the case of the officer, provided these W.P.(C)6013/2010 & conn. Matters Page 12 of 18 remarks have been recorded in any of the CRs pertaining to three years immediately preceding years prior to the year in which DPC is held and direct the cadre controlling authority to communicate the adverse remarks to the officer concerned so that he may have an opportunity to make a representation against the same. Where the un- communicated adverse remarks pertain to a period earlier than the above or where the remarks are not considered of sufficient gravity to influence the assessment of the officer concerned, the DPC may ignore the remarks while making the assessment. (emphasis added). (Source: Swamy‟s complete Manual on Establishment and Administration, Tenth Edition, 2006, pages 283-284)” 14. Neither in