UNION OF INDIA AND ANR. ....,...

A.K.NARULA

MAY 18,2007

[K.G. BALAKRISHNAN, CJ.ANDR.V. RA VEENDRAN, J.]

Service Law: Proniotion-Selection, process of-Post of Second-in-

--";' ....

Command-Assessment on basis of confidential reports of last five yearsc Bench mark of 'very good'-Candidate having three ratings of 'good' and two of 'very good'-Overall rating of 'good' by Departmental Promotion Committee and candidate not empanelled-Candidates' case that his service record similar to the promoted officer-DCP upgraded rating of promoted officer from 'good' to 'very good', giving overall rating of 'very good' and as

t.'.· such candidates' rating 'good' to be upgraded to 'very good~ upgrading

,,,. D overall grading to 'very good', and name to be included in the approved list-Held: Candidate's case different from promoted officer-CR shows that ... promoted officer deserved upgradation and not the candidate-Review DPC I'

was to examine the case on merits-Thus, the decision of review DPC that candidate did not deserve upgradation from 'good' to 'very good~ upheld-

E Though the candidate is promoted but is not entitled to promotion from retrospective effect.

Recruitment Rules required promotions to be made by selection.

Departmental Promotion Committee directed that Confidential Reports to be the basic inputs for assessment. DPC considered the CRs of eligible Assistant F Commandants for promotion to the rank of Second-in-Command. Benchmark for promotion to the rank of Second-in-Command was 'very good'. A candidate was to have four 'very good' reports of ACRs out of last 5 ACRs including the ACR for the latest year and was to have no adverse remarks in CRs. DPC empanelled for promotion, officers graded as 'very good' and officers as 'good'.

Respondent-Assistant Commandant had three ratings of 'good' for the years G 1985-86, 1987-88 and 1988-89 and two ratings of'very good' for the years 1986-87 and 1989-90, and as such the DPC gave him overall rating of 'good'.

The first nineteen in the list of officers with the rating 'good'. were empanelled and promoted. However, respondent's name did not figure in the list. '1-

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U.0.1 v. A.K. NARULA 263

Respondent filed writ petition seeking promotion since his service A record was similar to that RS-Assistant Commandant, who was promoted. It was submitted that both had secured 'very good' for three years and 'good' for two years, during the five years under consideration; that DPC upgraded the rating of RS for the year 1988-89 from 'good' to 'very good' and, gave him the overall rating of 'very good'; that in respect of the year 1987-88, his B case was similar to that of RS for 1988-89, and therefore his rating for 1987- 88 ought to have been upgraded from 'good' to 'very good', thereby becoming entitled to be placed in the block of 'very good' candidates selected for promotion. During pendency of the writ petition respondent was promoted.

Single Judge of the High Court allowed the writ petition and directed the appellants-Union oflndia to include the name of the respondent in the approved C list of Assistant Commandants for appointment to the rank of Second-in- Command from the date when anyone junior to him was promoted as Secondin-Command. Appellant filed appeals. Division Bench of High Court partly allowed the appeal setting aside the order of the Single Judge and directed the DPC to reconsider the respondent's case. A review DPC held that no case was made out to upgrade respondent's rating for 1987-88 from 'good' to 'very D good' and consequently, the overall rating of respondent remained 'good' and DPC did not recommend his case for promotion from retrospective effect.

Competent authority approved the recommendations of the review DPC and passed an order. Respondent challenged the same and sought promotion with retrospective effect. Division Bench of the High Court allowed the petition E and directed the appellants to reconsider the case of the respondent for promotion with reference to the DPC held on 13.6.1990 by treating the entry for the year 1987-88 as 'very good'. Hence the present appeal.

Allowing the appeal, the Court

HELD: 1. In view of the finding that the case of respondent was different from that of RS, the decision of Review DPC that the respondent did not deserve upgradation from 'good' to 'very good' is upheld.

(Para 18) (274-C)

2.1. The records of RS disclosed that for the year 1988-89, the reporting G authority had graded him as 'very good'; the reviewing authority had concurred with but the accepting authority had downgraded his rating from 'very good' · to 'good' without assigning any reason for not accepting the concurrent rating of 'very good' by the reporting authority and reviewing authority which was not justified. Therefore, exercising the power given under the guidelines H

A contained in the OM dated 10.3.1989, DPC modulated his rating f.or that year as 'very good'. As a consequence, the 'very good' rating of RS increased from three to four, resulting in upgradation of overall DPC rating from 'good' to 'very good'. [Para 12) [271-C-F)

2.2. On careful consideration, it is found that respondent's case was B different from that of RS. The CR of respondent for the year 1987-88 consisted of two parts. For the first half period, that is, from 1.4.1987 to 26.9.1987, the reporting authority had graded him as 'good' and reviewing authority had graded him as 'very good' and the accepting authority had graded him as 'good'.

In regard to the second half, that is, 3.10.1987 to 31.3.1988, all the three C authorities (reporting authority, reviewing authority and the accepting authority) had rated him as only 'good'. There was no question of reviewing . or upgrading the rating of respondent for the second half of 1987-88, as all

the three authorities had concurrently graded him as 'good'. Even in regard to the first half of that year (1.4.1987 to 26.9.1987), unlike the case of RS where both the reporting authority and the reviewing authority had D unanimously given the rating 'very good', the reporting authority had rated the respondent as 'good' and the reviewing authority had rated him as 'very good'; and in view of divergence between the reporting authority and reviewing authority, the accepting authority chose to rate him as 'good'. The DPC, on assessment, had rightly found that there was no case for revising the grading E of respondent The review DPC also found that the facts of respondent's case were different from that of RS. The CRs demonstrated that RS deserved upgrading and respondent did not [Para 13) [271-G-E; 272-A-C)

2.3. The review DPC reconsidered the matter and has given detailed reasons as to why the case of the respondent was not similar to that of RS.

F There was no question of moving him from the block of officers with the overall rating 'good' to the block of officers with the overall rating of 'very good' and promoting him with reference to the DPC dated 3.6.1990. In the absence of any allegation of ma/a fide or bias against the DPC and in the absence of any arbitrariness in the manner in which assessment has been made, the High Court was not justified in directing that the benefit of upgrading be given to G respondent, as was done in the case of RS. (Para 14) (272-F-H; 273-A)

State Bank of India v. Mohd Mynuddin (1987) 4 SCC 486; Union Public Service Commission v. Hiranya/al Dev, (1988) 2 SCC 242 and Badrinath v.

Government of Tamil Nadu, [2000 8 SCC 395, referred to.

H 2.4. The High Court was of the view that if the downgrading of

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U.0.1 v. A.K. NARULA 265

respondent's rating for the year 1987-88 by the accepting authority from 'very A good' to 'good' was similar to that of RS, then the same yardstick should be applied to respondent and the rating that has been downgraded by the accepting authority as 'good' should be upgraded as 'very good' for 1987-88. It also observed that failure to do so would be unfair. Having made these observations, the High Court set aside the decision ofDPC for 1990 and directed a review B DPC to reconsider the case of the respondent Therefore, it follows that review DPC was required to decide whether the case of the respondent for the year . 1987-88 was similar to that of RS for the year 1988-89, and if so, up-grade the rating of respondent for the year 1987-88 as 'very good'. It is true that in that event respondent also would have had four 'very good' rating and his overall rating would have jumped from 'good' to 'very good'. But all that C depended on the finding by Review DPC as to whether respondent was entitled for upgradation of rating for 1987-88. (Para 16) (273-D-F]

2.5. The decision of Single Judge of High Court merged with the judgment in the LPA. There is no conclusive finding in the judgment of the Division Bench that the respondent was entitled for upgradation of the entry D for 1987-88 from 'good' to 'very good'. The Division Bench held that no plausible explanation was given for adopting different yardsticks in the case of RS and the respondent, if respondent's case was similar to that of RS. The direction by the Division Bench that 'if on reconsideration, the respondent is found suitable, then he shall be promoted with retrospective effect' and that E 'DPC shall reconsider his case' i'nake it clear that DPC was required to examine whether the case of respondent was identical to that of RS. Only if the facts were the same, respondent was entitled to be treated in a manner similar to RS. Therefore, the Review DPC was entitled to examine the case of respondent on merits and take a decision. (Para 17) (273-G-H; 274-A-B]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2717 of 2007.

From the Final Judgment and Order dated 27 .05.2005 of the High Court of Punjab and Haryana at Chandigarh in Civil Writ Petition No. 4455 of2004.

Vikas Singh, ASG., B. Sunita Rao and Shanti Bhushan Chaubey for the G Appellants.

S.B. Upadhyay, Sr. Adv., Kumud L. Das for the Respondent.

The Judgment of the Court was delivered by H

R. V. RA VEENDRAN, J. Leave granted.

I. Union of India has filed this appeal by special leave against the judgment and order dated 27.5.2005 of the Punjab & Haryana High Court in Civil W.P. No.445512004.

2. Respondent was appointed as Deputy Superintendent of Police in the Central Reserve Police Force (CRPF for short) on 1.12.1971. He was promoted as Assistant Commandant on 23.7.1983. Promotion from the post of Assistant Commandant to the next higher post of Second-in-Command is on the basis of selection.

3. The O.M. dated I 0.3.1989 issued by the Minisay of Personnel, Public Grievances and Pension laid down the procedure of selection where the Recruitment Rules required promotions to be made by selection. It provided that where vacancies to be filled are more than four, the number of officers to be considered by the Departmental Promotion Committee ('DPC' for short) shall be' three times the number of vacancies. It authorized the DPC to decide its own method and procedure for objective assessment of the suitability of the candidates. It excluded interviews, unless specifically provided for in the relevant recruitment Rules and directed that Confidential Reports (CRs) were to be the basic inputs for assessment. The O.M. required the DPC to follow the procedure laid down therein to ensure that the evaluation of the CRs was fair, just and non-discriminatory. A summary of the relevant portions of the procedure laid down in the OM is given below:

(i) Suitability should be assessed on the basis of service record, with particular reference to CRs for five preceding years. CRs. of equal number of years should be considered in respect of all F officers.

(ii) DPC should not be guided merely by the overall grading that may be recorded in the CRs but should make its own assessment on the basis of entries made in the CRs. If the reviewing authority or the accepting authority had overruled the reporting authority or the reviewing authority as the case may be, the remarks of the latter authority should be taken as the final remarks for purposes of assessment provided it is apparent from the relevant entries that the higher authority had come to a different assessment consciously after due application of mind. If the remarks of the reporting authority, reviewing authority and accepting authority

\..ii. --....-·

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are complementary to each other, and one does not have the A

""Y effect of overruling the other, then final assessment shoul4 be made by the DPC, by reading the remarks together.

(ill) DPC should give an overall grading to each officer whose CRs are assessed, as outstanding, very good, good, average or unfit.

The panel of promotion should be prepared by the DPC based B on the overall grading assigned to each of the candidates considered by the DPC. Officers graded as 'outstanding' would _, rank en bloc senior to those who are graded as 'very good' and officers graded as 'very good' would nnk en bloc senior to those who are graded as 'good' and placed in the select panel c accordingly. Officers with the same grading would maintain their

1111111,, inter se seniority in the feeder post. Appointments from the panel should be made in the order of names appearing in the panel.

(iv) For promotion to posts which are in the level ofRs.3700-5000 and above, the benchmark grade should be "very good". For D promotions to Group 'A' posts carrying lesser scales of pay, the benchmark grade should be "good". " ,,

4. A Departmental Promotion Committee ('DPC' for short) was convened to fill up 48 vacancies of Second-in-Command on 13.6.1990. The DPC considered the CRs of 144 eligible Assistant Commandants. The benchmark for promotion E to the rank of Second-in-Command was 'very good'. As per the parameters adopted by the DPC held on 13.6.1990 on the basis of their prevailing instructions, a candidate should have four 'very good' reports of ACRs out of last 5 ACRs including the ACR for the latest year and should have no adverse remarks in CRs for the other years under consideration for securing the benchmark of 'very good'. Out of 148 officers considered, DPC rated 39 F officers as 'very good' and 80 officers as 'good'. After due deliberations, the DPC recommended that the 39 officers who had secured the benchmark grade of 'very good' should be empanelled for promotion. It also recommended that an additional nine senior-most Assistant Commandants from those who were graded as 'good' be empanelled for promotion to the rank of Second-in- 0 Command so that 48 vacancies could be filled. The DPC further empanelled the next ten senior-most Assistant Commandants graded as 'good' for promotion against 10 anticipated vacancies. -- S. The respondent had three ratings of 'good' for the years 1985-86, \9i1-iS and 1988-89 and two ratings of'very good' for the years 1986-87 and H

A 1989-90. The DPC, therefore, gc:ve the overall rating of'good' to the respondent As only 19 officers were needed from the list of officers with 'good' rating to fill the existing as well as anticipated vacancies, only the first nineteen in . the list of officers with the rating 'good' were empanelled and promoted. The respondent, though rated 'good', was not empanelled for promotion, as his B name did not figure in the first nineteen, having regard to the inter-seseniority among those who secured the overall rating of 'good'.

6. Feeling aggrieved, the respondent filed W.P. No.12316of1990 praying for a direction to the appellants herein to include his name in the list of officers approved for being appointed as Second-in-Command. The respondent C contended that his service record was similar to that of R. S. Virk, another Assistant Commandant, who was promoted. It was contended that both had secured 'very good' for three years and 'good' for two years, during the five years under consideration (1985-86, 1986-87, 1987-88, 1988-89 and 1989-90); that the DPC upgraded the rating of R.S. Virk for the year 1988-89 from 'good' to 'very good' and, consequently, gave him the overall rating of 'very good'; D that in respect of the year 1987-88, his case was similar to that ofR.S.Virk for 1988-89, and therefore his rating for 1987-88 ought to have been upgraded from 'good' to 'very good' and that if it had been done, he would have also got the overall rating of 'very good' instead of 'good', thereby becoming entitled to be placed in the block of 'very good' candidates selected for E promotion.

7. By order dated 11.2.1992, a learned Single Judge accepted the Respondent's contention and allowed the writ petition holding that the DPC having modulated the rating ofR.S. Virk from 'good' to 'very good', failure to do so in the case of respondent in similar circumstances would amount to p unfair and hostile discrimination. He also held that the appellants failed to prove that those who were promoted had a better service record than respondent. He, however, noted that as the respondent had been promoted as Second-in-Command (during the pendency of the writ petition), all that survived for consideration was whether respondent was entitled to be promoted from an earlier date. He directed the appellants to include the name of the G respondent in the approved list of Assistant Commandants for appointment to the rank of Second-in-Command from the date when anyone junior to him was promoted as Second-in-Command (in pursuance of the selection by the DPC on 13.6.1990), with all consequential benefits.

8. The said judgment dated 11.2.1992 was challenged by the appellants

' ) herein in LPA No.586 of 1992. The Division Bench found that in the case of A ·-- R. S. Virk (who was senior to respondent in the feeder post) for the year 1988- 89, the accepting authority had rated him as 'good', but DPC had upgraded the rating as 'very good' on the ground that the reporting authority and the reviewing authority had rated him as 'very good', and the accepting authority had failed to record any reason for downgrading him to 'good'. The Division B Bench found that in the case of Respondent for the year 1987-88, the reviewing authority had graded him a!. 'very good' whereas the accepting authority had graded him as 'good' without assigning any reason. The Division Bench was \.. of the view that no plausible explanation was disclosed for applying different yardsticks to R.S. Virk and Respondent, that application of a different yardstick to Respondent would amount to unfair treatment, and that ifthe same yardstick c applied in the case of R S Virk, had been applied to Respondent, the DPC would have rated the Respondent also as 'very good' instead of 'good'. The Division Bench, however, felt that the learned Single Judge ought not to have issued a direction to include the name of Respondent in the approved list (and that too from the date when a person junior to him was promoted) and D ought to have left it to DPC to reconsider the matter. The Division Bench,

therefore, allowed the appeal in part by judgment dated 12.7.2001, set aside the order of the learned Single Judge and directed the DPC to reconsider the respondent's case, keeping in view the observations made in the said judgment while adjudging his suitability. The Division Bench also observed that if on reconsideration the respondent was found suitable, he shall be promoted with E retrospective effect from the date on which R.S. Virk was promoted as Secondin-Command, and should be given all consequential benefits.

9. Pursuant to the decision of the Division Bench, a review DPC was convened on 4.12.2003. It reconsidered the case of the respondent. It held that there was no ground to upgrade his rating for 1987-88 from 'good' to F 'very good'. Consequently, the overall rating of Respondent by the DPC remained 'good' and DPC did not recommend him for promotio:t with respect to the DPC dated 13.6.1990. We extract below the reasoning given by the reviewDPC:

"In view of the observations made by the Hon'ble Court, the ACRs G

for the period from 1.4.1985 to 31.3.1990 in respect of Shri A.K. Narula and Shri R.S. Virk have been duly scrutinized by the DPC. Scrutiny of

.·~ records reveals that ACR ofShri A.K. Narula for the year 1987-88 is in two parts. The first part is for 6 months from 1.4.1987 to 26.9.1987

in which he was graded "Good" by Reporting Officer, "Very Good" by H

Reviewing' Officer and "Good" by Accepting Officer whereas, in the second part of ACR for a period of six months from 3.10.1987 to 31.3 .1988, Reporting Officer, Reviewing Officer and Accepting Officer all had rated him as "Good". Having gone through all these facts, the Review DPC is of the view that the overall performance ofShri A.K.

Narula during the year 1987-88 was "Good" only. His case is not identical to that of Shri R.S. Virk since his ACR was for full one year and Reporting and Reviewing Officer had graded him as "Very Good" and it was the final Accepting Authority who had graded him as "Good" without any reasons. Hence, no case is made out to upgrade the report of Shri A.K. Narula from "Good" to "Very Good"."

The competent authority approved the recommendations of the review DPC and the decision was communicated by order dated 5.1.2004.

IO. This led to the second round of litigation. The respondent filed W.P. No.4455 of2004 wherein he sought quashing of the order dated 5.1.2004 D and a direction to the appellant to promote him to the rank of Second-incommand with reference to DPC held on 13.6.1990 with all consequential .. benefits. A Division Bench of the High Court allowed the said petition by • judgment and order dated 27.5.2005. The Division Bench held that the judgment dated 12. 7.200 I of the Division Bench in the earlier round of litigation had held that the respondent was not treated fairly and had specifically directed E the DPC tc reconsider his case in the light of its observations; that the said decision attained finality as the SLP filed by Appellants against the said judgment dated 12.7.2001 was dismissed by this Court on I 1:8.2003; that inspite of the above, the review DPC had reiterated its earlier decision and thereby failed to comply with the observations in the judgment dated 12.7.2001; p and that therefore, the decision of the review DPC could not be upheld. The High Court, therfore, quashed the order dated 5.1.2004 and directed the appellants to reconsider the case of the respondent for promotion with reference to the DPC held on 13.6.1990 by treating the entry for the year 1987- 88 as 'very good'. The court also directed that respondent shall be granted all consequential reliefs. The said decision is challenged in this appeal by G special leave.

11. On the contentions urged, two questions arise for consideration:

(i) Whether the case of respondent was similar to or identical with that of R.S. Virk and, consequently, DPC ought to have treated

the CR ofrespondent for the year 1987-88 as 'very good' thereby A upgrading the overall grading from 'good' to 'very good'.

(ii) Whether the decision dated 12. 7.2001 in the first round of litigation had concluded the issue of entitlement of the respondent to the rating of 'very good' for 1987-88 and consequently, all that was required of the review DPC was to include him in the approved B list of Assistant Commandants with the overall rating of 'very good' and promote him to the rank of Second-in-Command' with reference to DPC dated 13.6.1990?

Re : Question (i) : c

12. R.S. Virk had the rating of 'good' for 1985-86 and 1988-89. He had three 'very good' ratings and two 'good' rating during the five year period between 1985-86 and 1989-90. The records ofR.S. Virk disclosed that for the year 1988-89, the reporting authority had graded him as 'very good'; the reviewing authority had concurred and also rated him as 'very good'; but the accepting authority had downgraded his rating from 'very good' to 'good' D without assigning any reason for not accepting the concurrent rating of 'very good' by the reporting authority and reviewing authority. DPC was, therefore, of the view that where both the reporting authority and reviewing authority had graded the performance of R. S. Virk as 'very good', the accepting authority was not justified in downgrading the rating without assigning any E reason. Therefore exercising the power given under the guidelines contained in the OM dated 10.3.1989, DPC modulated his rating for that year as 'very good'. As a consequence, the 'very good' rating of R.S. Virk increased from three to four, resulting in upgradation of overall DPC rating from 'good' to 'very good'.

13. The respondent had also secured three 'very good' ratings for 1986- 87, 1988-89 and 1989-90. For the other two years; that is for the years 1985-

86 and 1987-88, the respondent had secured the rating of 'good'. The respondent contended that his rating for 1987-88 was similar to that of R.S.

Virk for 1988-89 as the accepting authority had downgraded his rating without assigning any reason, and therefore, DPC ought to have modulated his rating G for 1987-88 as 'very good'. On careful consideration, we find that respondent's case was different from that of R. S. Virk. The CR of respondent for the year 1987-88 consisted of two parts. For the first half period, that is, from 1.4.1987 to 26.9.1987, the reporting authority had graded him as 'good' and reviewing authority had graded him as 'very good' and the accepting authority had H

l graded him as 'good'. In regard to the second half, that is, 3.10.1987 to --?r- 31.3.1988, all the three authorities (reporting authority, reviewing authority t= and the accepting authority) had rated him as only 'good'. There was no • question of reviewing or upgrading the rating of respondent for the second half of 1987-88, as all the three authorities had concurrently graded him as

B 'good'. Even in regard to the first half of that year (1.4.1987 to 26.9.1987), unlike the case of R.S. Virk where both the reporting authority and the reviewing authority had unanimously given the rating 'very good', the reporting authority had rated the respondent as 'good' and the reviewing \-- authority had rated him as 'very good'; and in view of civergence between ...

the reporting authority and reviewing authority, the accepting authority chose c to rate him as 'good'. The DPC, on assessment, had rightly found that there

~ was no case for revising the grading of respondent. The review DPC also found that the facts of respondent's case were different from that of R.S. Virk.

I The CRs demonstrated that R.S.Virk deserved upgrading and respondent did • not. j....

14. The guidelines give a certain amount of play in the joints to the DPC by providing that it need not be guided by the overall grading recorded in the CRs, but may make its own assessment on the basis of the entries in the ,

CRs. The DPC is required to make an overall assessment of the performance of each candiate separately, but by adopting the same standards, yardsticks

E and norms. It is only when the process of assessment is vitiated either on F

the ground of bias, malafides or arbitrariness, the selection calls for interference.

Where the DPC has proceeded in a fair, impartial and reasonable manner, by applying the same yardstick and norms to all candidates and there is no p arbitrariness in the process of assessment by the DPC, the court will not interfere (vide State Bank of India v. Mohd Mynuddin, (1987] 4 SCC 486, F Union Public Service Commission v. Hiranyalal Dev, (1988] 2 SCC 242 and Badrinath v. Government of Tamil Nadu, (2000] 8 SCC 395). The review DPC ¥"' reconsidered the matter and has given detailed reasons as to why the case

.J. of the respondent was not similar to that of R S Virk. If in those circumstances, ... the Review DPC decided not to change the grading of the respondent for the

G period l.4.1987 to 31.3.1988 from 'good' to 'very good', the overall grading of the respondent continued to remain as 'good'. There was no question of moving him from the block of officers with the overall rating of 'good' to the block of officers with the overall rating of 'very good' and promoting him with reference to the DPC dated 13.6.1990. In the absence of any allegation ofmala )..-. fide or bias against the DPC and in the absence of any arbitrariness in the ( H manner in which assessment has been made, the High Court was not justified

A downgrading of the rating of R. S. Virk for 1988-89, the DPC should modulate the rating of respondent for 1987-88 as 'very good' instead of 'good', as was done in the case ofR.S.Virk. The direction by the Division Bench that 'if on reconsideration, the responde_nt is found suitable, then he shall be promoted with retrospective effect' and that 'DPC shall reconsider his case• make it B clear that DPC was required to examine whether the case of respondent was identical to that of R. S. Virk. Only if the facts were the same, respondent was entitled to be treated in a manner similar to R.S.Virk. The Review DPC was, therefore, entitled to examine the case of respondent on merits and take a decision.

C Conclusion :

18. In view of our finding that the case of respondent was different from that of R.S.Virk, the deCision of review DPC that the respondent did not deserve •ipgradation from 'good' to 'very good', deserves to be upheld.

19. We, therefore, allow this appeal, set aside the judgment dated 27.5.2-005 passed by the High Court and dismiss the writ petition quashing

~ I the decision of the review DPC. Parties to bear their respective costs. r

NJ.

Appeal allowed.