Case: R.L. Butail Vs. Union of India and Others

The appellant, an electrical engineer, began his career in the Simla Electricity Supply Undertaking and worked there from 1934 to 1949. In 1949, he was appointed as a Project Officer in the Central Electricity Commission, now designated the Central Water and Power Commission (Power Wing). He was confirmed in that post in 1950 and later on was promoted to the post of a director, in which post he was working since 1955. He was confirmed in that post by an order, dated April 15, 1963 with retrospective effect from August 5, 1960.By a communication dated September 16, 1965 he was informed of an adverse entry in the annual confidential report for the year 1964. The entry reads asA Problem Director in that it falls to the inevitable lot of some member to have him under his charge and manage as far as practicable. .agree with the above even though the officer is intelligent and capable of good work if he wishes to apply himselfanother communication dated July 7, 1966 the appellant was informed that an adverse entry had been made in his confidential report also for the year 1965. That entry reads aswork during the year was below the average, considering his senior position in the Directors Cadre. Shri Butail can do good work if he like(s) to doreceiving these communications the appellant made representations in which he asked for specific instances on which adverse opinions about him had been recorded. These representations were, however, rejected. In the meantime, the question of filling in the post of Director (Selection Grade)/Deputy Chief Engineer arose. According to the appellant, this post as also certain other higher posts including that of a member were promotion posts. Being the only permanent director amongst the candidates, he was the senior most of them all and claimed that he, was for that reason entitled to be promoted. Both in 1964 and 1965, however, he was overlooked by the Departmental Promotion Committee and the Union Public ServiceMay 12, 1967, he was served with an order compulsorily retiring him from service with effect from August 15, 1967 on completion of the age of 55 years. The order was made under r. 56(j) of the Fundamental Rules made under Art. 309 of theappellant filed three writ petitions Nos. 608 and 607 of 1966 and 1550 of 1967 in the High Court of Punjab challenging the validity of the said entries and the said order of compulsory retirement and praying that the said two entries should be expunged and proper entries made, that the orders declaring him unfit for promotion and the said order of compulsory retirement should be quashed. The High Court dismissed all the writ petitions, Hence these appeals.

Reasoning:
Further, the rules do not provide for nor require an opportunity to be heard before any adverse entry is made. The contention that an enquiry would be necessary before an adverse entry is made suffers from a misapprehension that such an entry amounts to the penalty of censure set out in r. 1 1 of the Central Civil Services (Classification, Control and Appeal) Rules. The entry is made under the Office Order of 1961 set out above by way of an annual assessment of the work done by the Government servant and not by way of a penalty under the said Central Civil Services Rules. True it is that such remarks would be, taken into consideration when a question such as that of promotion arises and when comparative merits of persons eligible for promotion are considered. But then, whenever a Government servant a aggrieved by an adverse entry he has an opportunity of making a representation. Such a representation would be considered by a higher authority, who, if satisfied, would either amend, correct or even expunge a wrong entry, so that it is not as if an aggrieved Government servant is without remedy. Making of an adverse entry is thus not equivalent to imposition of a penalty which would necessitate an enquiry or the giving of a reasonable opportunity of being heard to the concerned Government servant. This part of the appellants grievance, therefore, has to be rejected.The Departmental Promotion Committee and the Union Public Service Commission which met in 1964 and 1965 did not recommend or select the appellant for the post of Director (Selection Grade) or that of a Member. The argument was that being the only permanent director amongst all the rest of the directors, . he was the senior most of them all. Yet, one Aswath was first promoted to the post of Director (Selection- Grade) in December 1964 and then a few days later to the post of Member. In this connection the appellants allegations were two. The first was that the adverse confidential reports for 1964 and 1965 were placed before the Departmental Promotion Committee and the Commission long before they were communicated to him and therefore before he could make any representation against them. Consequently, the two bodies had no opportunity of knowing his side of the case and relying on the said reports only overlooked his right to promotion. Further, the refusal to recommend him for the higher post amounted to withholding of promotion, a penalty which could not be inflicted on him without a departmental inquiry. The second was that in any case Aswath ought not to have been raised to the higher post as allegations of financial irregularities were outstanding against him in consequence of which he resigned on August 1, 1965 and left for the United States of The confidential report in respect of the appellant for the year 1964 was prepared on March 18, 1965. It was, no doubt, released to the appellant on September 16, 1965. But the Promotion Committee met in May 1964 and recommended Aswath for the post of Director (Selection Grade). Aswath was promoted to that post in December 1964. Obviously, the adverse entry for the year 1964 was not and could not be before that Committee. If at all the Committee declined to recommend the appellants name because of adverse confidential reports, such reports could only be for the earlier years. The record shows that confidential reports for 1955, 1958 and 1959 were adverse to him. These had been communicated to him from time to time and the appellant had made representations against them and bad failed. Aswath was appointed a member on December 30, 1964 when the appellant was again overlooked both by the Promotion Committee and the Public Service Commission. But that again could not be on account of the confidential report for 1964, which as aforesaid, was recorded much later in March 1965.The confidential report for 1965 was prepared in 1966. Therefore, the report for 1965 would not be before that Committee when it declined to recommend the appellant in 1965. This time the report for 1964 would be before it and that too without his representation against it as, , that report had been conveyed to the appellant in September 1965. That fact, however, cannot make any difference. The representation made by the appellant, though made subsequently, was actually rejected with the result that the confidential report for 1964 remained unchanged. The practice followed by the Promotion Committee was that if in such a case a representation were to be accepted and in consequence the confidential report was altered or expunged. the Promotion Committee would have to review its recommendations in the light of such a result. In the present case, however, no question of such a review arose as reports for 1964 and 1965 were, in spite of representations by the appellant, neither altered nor set aside. There was, therefore, no question of any injustice having been done to the appellant despite the fact that the Committee had before it the confidential report without there being along with it, any representation made by the appellant. Nor did the question of a breach of natural justice arise in view of the aforesaid practice followed by the Promotionr. 11 of the Central Services Rules, 1965, although withholding promotion is one of the penalties which can be imposed on a Government servant, the explanation thereto expressly provides that non-promotion of a Government servant after consideration of his case does not constitute a penalty. There was, therefore, no question of the department having to hold an enquiry and then only to decide not to promote the appellant to the higher post. Again no question of breach of the principles of natural justice arises in such a situation.The appellant also cannot challenge his non-promotion on the ground of seniority alone. It appears that the post of a Member was declared to be a selection post by the President as early as 1952. That decision is evidenced by the letter dated March 15, 1952, Appendix III to the counter-affidavit of the respondents in Writ Petition No. 608/D of 1966. By rules made by the President under Art. 309, dated November 6, 1965, the post of the Member along with certain other posts was once again declared to be a selection post. The respondents counter-affidavit clearly affirms that the post was a selection post and that when Aswathi was appointed to that post in December 1964. the selection made from amongst the candidates was on an all India basis and not on the footing that the post was one where appointment was to be made on the basis of seniority in the Department alone. The appellant has not shown that the statement in the said letter of March 15, 1952 that the President bad declared the post of Member a selection post was not correct or that that declaration was not under Art. 309. For such a challenge the burden of proof was upon him, a burden which he has not discharged. We are, therefore, bound on the material brought by him on record to proceed on the footing that the post of a Member was a selection post since 1952, and therefore, the fact of his being the senior most amongst the directors in the department did not by itself entitle him to beappellants contention that Aswath ought not to have been appointed first to the post of Director (Selection Grade) and then as a Member as there were allegations of financial irregularities against him was denied by the respondents. The contention involves questions of disputed facts. We do not think that the circumstances of the present case make it necessary for us to undertake the task of inquiring into such disputed facts which require leading considerable additional evidence by both the parties. But assuming that there were allegations made against that officer, both the Promotion Committee and the Public Service Commission were competent to take that fact into consideration and assess its worth. On the materials on record we can hardly be called upon to arrive at any such assessment and substitute our opinion in place of theirs. We cannot consequently accede to the appellants contention that his non-promotion to the aforesaid superior posts or either of them was vitiated for any of the reasons advanced by him.On the question of non-promotion, the appellant had demanded disclosure of the proceedings before the Promotion Committee, which demand was resisted by the respondents by claiming privilege. In our opinion it is not necessary to go in this case into the vexed question of privilege, firstly, because the demand for disclosure was in the nature of a fishing inquiry into the papers relating to the proceedings of that Committee, and secondly, because the adverse confidential reports, which, according to the appellant, were responsible for the Committees refusal to recommend his name, were communicated to the appellant and have been produced by him. The demand for disclosure of those proceedings, therefore, cannot be entertained as a bona fideaffidavit in reply by the respondents, dated February 6, 1968, in clear terms avers that before passing the impugned order the appropriate authority, in accordance with the said Office Memorandum of the Ministry of Home Affairs, reviewed the case of the appellant and came to the conclusion that it was in public interest that he should be compulsorily retired on his attaining fifty-five Vears of age. The affidavit also avers that the appropriate authority had "carefully considered all relevant factors relating to the case of the petitioner (the appellant) and came to the definite opinion that it was not in the public interest to retain the petitioner in service beyond the date on which he attained the age of fifty-five years." In their reply-affidavit, dated July, 10, 1967, in *.P. 1550 of 1967 it is further stated that before the said decision was reached, the appellants entire service record was considered including his confidential reports, that where such reports were adverse they had been earlier communicated to him from time to time, that the appellant had made representations against them to the competent authority and even personal interviews before superior officers had been granted to him to vindicate his point of view. It was after all this had been done and the confidential reports had remained unaltered that the appropriate authority considered his entire record of service and then reached the conclusion that F. R. 56(j) should be resorted to. It may well be that in spite of the work of the appellant being satisfactory. as he claimed it was, there may have been other relevant factors, such as the history of the appellants entire service and confidential reports throughout the period of his service, upon which the appropriate authority may still decide to order appellants retirement under F. R. 56(j). Further, there is nothing to show that the impugned order was not in public interest. As aforesaid, Col J. N. Sinhas case([1971] 1 S. C. R. 791.) clearly lays down that the question as to the correctness of such a decision by the appropriate authority, provided it is bona fide, would not be gone into by this Court. We have already negatived the plea of mala fides raised by the appellant.Consequently, a plea of lack of bona fides can hardly be entertained. Likewise, the plea that the appropriate authority had not applied its mind must also fail in view of the clear averments made in that regard in the affidavits cited earlier, no reason having been adequately shown to discard those statements as untrue or otherwise unbelievable. That being the position, we are constrained to come to the conclusion that the appellant has-failed to make out his case in any one of his three writ petitions.