CIVIL WRIT JURISDICTION CASE No.11637 of 2005 In the matter of an application under Article 226 of the Constitution of India PRIYA NATH SINHA, aged about 60 years, son of Sri Tribhuwan Nath, resident of 13, Mangaldeep Apartment, Patliputra Colony, Patna ………Petitioner Versus 1. THE CENTRAL ADMINISTRATIVE.TRIBUNAL through its Registrar, Patna Bench, Patna 2. The Union of India, through its Secretary, Department of Mines, Geological Survey of India, Govt. of India, Shastri Bhawan, New Delhi 3. The Director General, Geological Survey of India, 27, J L Nehru Road, Kolkata 4. The Deputy Director General, Geological Survey of India, Eastern Region, Salt Lake, Kolkata 5. The Deputy Director General, Geological Survey of India, Bhuvigyan Bhawan, Lohia Nagar, Kankarbagh, Patna……Respondents *********** For the Petitioner : Mr. Bindhyachal Singh, Advocate Mr. Rajesh Daya, Advocate For the Respondents : Mr. Sanjay Kumar Pandey Counsel for the Central Government ************ P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE BIRENDRA PRASAD VERMA S K Katriar, J. This writ petition is directed against the order dated 18.5.2005 (Annexure 10), passed by the Central Administrative Tribunal, Patna Bench, in OA No.407 of 2004, whereby the original application preferred by the present petitioner has been rejected, and the decision of the respondent authorities declining to promote him to the next higher post of Director (Geology), has been upheld. 2. A brief statement of facts essential for the disposal of the writ petition may be indicated. The petitioner was a Geologist in the services of the Government of India. It published a combined gradation list on 1.8.2000 (Annexure 2), wherein the petitioner figured at sl.no.70, followed by one M P Muraleedharan at sl. no.71. The petitioner as well as the said M P Muraleedharan were at that point of time occupying the position of Senior Geologist. The Departmental Promotion Committee (DPC, in short) met on 14.6.2002, and considered candidates to fill up 38 vacancies of Director, Geology. Out of these 38 posts, two were for the year 2000-2001. In view of the recommendation of the DPC, the Government of India, Geological Survey of India, issued office memo dated 21.6.2002 (Annexure 3), whereby 37 Senior Geologists were promoted to 2 the next higher posts of Director (Geology). The petitioner was not found fit for promotion, and persons junior to him including the said M P Muraleedharan were promoted. The subsequent meeting of the DPC also did not find the petitioner fit for promotion. This was followed by OA No.1019 of 2003 at the instance of the petitioner which was disposed of by order dated 8.1.2004, whereby the Director General of Geological Survey of India was directed to consider the petitioner’s representation and dispose of the same by a reasoned order. The Director General considered the representation and has rejected the same by a reasoned order dated 5.5.2004 (Annexure 7), which in substance states that the petitioner was denied promotion because he was not found fit by the DPC. The petitioner challenged the said order by preferring the present OA No.407 of 2004, which has been rejected by the impugned order, whereby the Tribunal has held that in case of promotion it is a question of comparative assessment. The petitioner was found unfit by the DPC and, therefore, the Tribunal would not like to substitute its judgment over that of the DPC. 3. We have perused the materials on record and considered the submissions of learned counsel for the parties. According to the aforesaid office memo dated 10.4.89, for all the posts of Government of India which carry the unrevised pay- scale of Rs.3700-5000 and above, the Bench Mark grade should be `Very Good’ for the last five years before the DPC. In the present case, the petitioner was considered but he did not earn `Very Good’ remarks during all the five years preceding the DPC. He has, therefore, not been found suitable for the promotion. The admitted position is that the entries in the petitioner’s ACR which fell short of `Very Good’ were not communicated to him for comments/representation. 4. An identical issue fell for consideration for the Supreme Court in Dev Dutt v. Union of India & Ors. [(2008) 8 SCC 725], wherein the Supreme Court has observed that in view of the strict Bench Mark prescribed by the Government of India as per the aforesaid office memo, any entry in the ACR short of `Very Good’ will be treated to be adverse and has to be communicated to the officer concerned. The Supreme Court has observed in paragraphs 9, 16, and 17 in Dev Dutt’s case as follows:- 3 “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. Dev Dutt’s case also related to a superannuated employee of the Government of India as the present one. The present petitioner superannuated from the services of the Govt. of India with effect from 31.1.2005, and has entered the evening of his life. Therefore, there is no question of his functioning in the office of the Director (Geology), and was deprived of the same because of the entries. 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). 6. We may further point out that this Court had the occasion to deal with an identical matter in CWJC No.4325 of 2007 (Union of India vs. S P Singh & Ors) 4 to which one of us (S K Katriar, J.) was a party. The said CWJC No.4325 of 2007 was with respect to a former Post Master General who was a candidate for promotion to the post of Principal Chief Post Master General. He had earned `Very Good’ remarks for three periods, and `Good’ remarks for two periods preceding the DPC. He had not been communicated `Good’ remarks because the Department was under the impression that it was not required to be communicated. However, the Tribunal allowed his original application and in substance directed for reconsideration of his case. The Department challenged the same by preferring the said CWJC No.4325 of 2007 which was dismissed by this Court with certain modification in the order of the Tribunal. 7. The present case is entirely covered by the judgment of the Supreme Court in Dev Dutt’s case, and that of this Court in Union of India vs. S P Singh (supra). We, therefore, allow the present writ petition in terms of the judgment in Dev Dutt’s case with particular emphasis on paragraphs 43 and 44 of the judgment which 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.” This Court will be pleased if the entire process is completed within a period of three months from today. 5 8. In the result, the writ petition is allowed. The order dated 18.5.2005 (Annexure 10), passed by the Central Administrative Tribunal, Patna Bench, is hereby set aside. ( S K Katriar, J. ) Birendra Prasad Verma, J. I agree. ( Birendra Prasad Verma, J. ) Patna High Court, Patna The 25th of June 2010 NAFR/mrl