Rajasthan High Court - Jodhpur
Union Of India And Ors vs Narendra Kumar Jain And Ors on 3 June, 2025
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
[2025:RJ-JD:23420-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
D.B. Civil Writ Petition No. 9592/2010
1. The Union of India through the Secretary, Ministry of Finance,
Department of Revenue, North Block, New Delhi - 110 001.
2. The Cabinet Secretary to the Government of India, Cabinet
Secretariat, Raisinha Hills, South Block, New Delhi.
3. The Central Board of Direct Taxes (CBDT) through its Chairman,
Finance Ministry, Department of Revenue, North Block, Central
Secretariat, New Delhi - 110 001.
4. The Member (Personnel), the Central Board of Direct Taxes,
North Block, Central Secretariat, New Delhi - 110 001.
5. The Chief Commissioner of Income - Tax, Jodhpur.
----Petitioner
Versus
1. Narendra Kumar Jain s/o Late Shri Ghewarchand Ji Jain, at
present working as Commissioner of Income tax - 1, Jodhpur, r/o
V/2, Income Tax Department, Polo II, Mandore Road, Jodhpur.
2. The Central Administrative Tribunal, Jodhpur Bench, Jodhpur.
3. The U.P.S.C. through the Chairman, Dholpur House, Shahjahan
Road, New Delhi - 110 001.
----Respondent
For Petitioner(s) : Mr. Sunil Bhandari
For Respondent(s) : Mr. Alok Jain (through VC)
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE CHANDRA PRAKASH SHRIMALI Judgment Reserved on 27/03/2025 Pronounced on 03/06/2025 Per Dr. Pushpendra Singh Bhati, J:
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1. The Petitioner-Union of India has preferred this writ petition under Articles 226 and 227 of the Constitution of India, claiming the following reliefs:
"It is, therefore, most humbly and respectfully prayed that the record if the case may kindly be called for and the writ petition may kindly be allowed and by an appropriate writ, order or direction, the impugned judgment dated 30.03.2010 passed in the O.A. No. 5/2010, may kindly be quashed and set aside.
Any other appropriate writ, order or direction, which this Hon'ble Court may deem fit and appropriate in favour of the petitioner, in the facts and circumstances of the case, may also kindly be passed in the interest of justice."
2. Brief facts of the case are that the respondent No.1-original applicant (henceforth also referred to as 'original applicant') was inducted in the services of the Union as an officer of the Indian Revenue Services (Batch 1976), and was promoted on the post of Commissioner of Income Tax, Jodhpur; the present case pertains to the original applicant's claim for his due promotion on the post of Chief Commissioner of Income Tax (in short, "CCIT") against the vacancy arising in year 2008-09.
2.1. The respondent-applicant was originally considered by the Departmental Promotion Committee ("DPC") held on 18.11.2008 for the promotion to the post in question i.e. CCIT, however the DPC did not recommend his case on the ground that in one of the five years' Annual Confidential Report ("ACR") i.e. for the year 2006-07, he was rated "Good", which is less than the benchmark for such promotion. The respondent-applicant filed an original application, which was registered as Original Application No. 252/2008, before the learned (Downloaded on 03/06/2025 at 09:44:21 PM) [2025:RJ-JD:23420-DB] (3 of 15) [CW-9592/2010] Central Administrative Tribunal, Jodhpur Bench, Jodhpur (in short, 'Tribunal') challenging the decision of the petitioner authorities, which was admitted and an interim order was by the Tribunal to the effect that one post of CCIT be kept vacant and any promotion that might be ordered will remain subject to outcome of the original application. 2.2. Thereafter, the said original application was transferred to the Principal Bench of the Tribunal and came to be registered as (Original Application No.1540/2009) and the learned Principal Bench allowed the original application while directing the petitioners herein to communicate the ACR of the year 2006-07 to enable the respondent- applicant to make a representation against it. It was also directed that after considering the representation, if the respondent-applicant is able to secure an ACR which commensurate with the required benchmark, the petitioners would convene a Review DPC for the said purpose.
2.3. The respondent-applicant thereupon submitted a representation which was considered by the competent authority and an order dated 24.09.2009 was issued by the petitioner No.1 stating that the performance of the respondent-applicant during the year 2006-07 cannot be construed as being below par for being eligible for promotion as CCIT.
2.4. Subsequently, the case of the respondent-applicant was considered by the Review DPC held on 23.10.2009; however, the DPC again declared him as "Unfit" on the ground that the competent authority while considering the representation of the respondent- applicant has not placed any vital justification to support its decision (Downloaded on 03/06/2025 at 09:44:21 PM) [2025:RJ-JD:23420-DB] (4 of 15) [CW-9592/2010] as to conclude that the ACR of the applicant for year 2006-07 met the required benchmark of "Very Good" for the purpose of promotion in question.
2.5. Aggrieved by the said finding of the Review DPC, the respondent-applicant filed an original application bearing No.5/2010 before the learned Tribunal contesting the same, which was disposed of, vide the impugned order dated 30.03.2010, with a direction to the petitioners herein to convene a review DPC to consider the case of the original application for the promotion in question on the basis of his ACR for the year 2001-02, instead of the ACR of the year 2006-
07. Hence, the present petition has been preferred by the Union of India, claiming the afore-quoted reliefs.
3. Mr. Sunil Bhandari, learned counsel appearing for the petitioners submitted that the determination made by the learned Tribunal in the impugned order is contrary to law as well as facts, inasmuch as the case which was never setup by the original application (respondent No.1 herein) has been assumed and directions have been given based on certain presumptions. In the present case, there was no plea made by the respondent-applicant that the ACR of 2006-07 may be ignored and ACR of 2001-02 may be considered, but while ignoring the said vital aspect of the case, the learned Tribunal has passed the impugned order, which is not sustainable in the eyes of law.
3.1. Learned counsel further submitted that so far as the promotion is question is concerned, it has to be governed by the Rules of promotion which prescribes that one has to possess the required (Downloaded on 03/06/2025 at 09:44:21 PM) [2025:RJ-JD:23420-DB] (5 of 15) [CW-9592/2010] benchmark for all the five preceding years. In the present case, the promotion in question was for the vacancy year 2008-09, and therefore, the ACRs from the year 2002 to 2008 were to be considered and that the same covers ACR for the year 2006-07 of the respondent-applicant, which lacks the remark of 'outstanding' or 'very good' and on account of which, he was rightly declared as unfit for promotion as CCIT. He further submitted that there was no room for the Tribunal to make an order which tantamount to change the rules of promotion or lay down a new rule to consider ACR of some other year for enabling the original application to get such promotion. 3.2. Learned counsel also submitted that in compliance to the order passed by the learned Tribunal in O.A. No. 1540/2009, the respondent-applicant was communicated the ACR for the year 2006- 07 and was also allowed to make representation which was further considered by the competent authority and that a Review DPC was convened on that basis for reconsideration of the case of respondent- applicant. However, the respondent-applicant's ACR in question was not upgraded to 'Very Good' and therefore, in absence of the requisite parameters necessary for the promotion, the petitioner declared the respondent-applicant to be unfit for such promotion. 3.3. Learned counsel further submitted that the respondent- applicant had a right to be considered for promotion and not a right to promotion. He further submitted that on account of the same, his candidature was rightly considered, however, on being found to be unsuitable, he was denied the promotion.
(Downloaded on 03/06/2025 at 09:44:21 PM) [2025:RJ-JD:23420-DB] (6 of 15) [CW-9592/2010] 3.3.1. Learned counsel further submitted that the respondent- applicant's contention that he was discriminated and treated as ineligible is wholly incorrect as while convening the DPC, the respondent-applicant was found to be unfit/unsuitable and not ineligible for the promotion in question.
3.4. Learned counsel in support of such submissions relied on the following judgments:
(a) Government of West Bengal & Ors. Vs Dr. Amal Satpathi & Ors. [SLP (Civil) No.(s) 10245 of 2024, decided by Hon'ble Supreme Court on 27.11.2024]
(b) Urmila D. Patel vs. State of Gujarat & Ors. [(2024) 12 GUJ CK 0035]
(c) Ram Prabodh Pandey vs The State of Jharkhand [W.P. (S) No. 6961 of 2012, decided by the Hon'ble High Court of Jharkhand on 30.01.2025]
(d) Saroj Kumar vs Union of India, (2009) 16 SCC 146
4. Per Contra, Mr. Alok Jain, learned counsel appearing for the respondent-applicant (original applicant) while opposing the aforesaid submissions made on behalf of the petitioners, at the outset submitted that the present writ petition is not maintainable for the reason that the petitioners have suppressed the fact of them filing a Review Petition No. 11/2010 in O.A. No.5/2010 before the learned Tribunal, seeking review of the same order dated 30.03.2010 as impugned herein. As per learned counsel, since the said review was dismissed by the learned Tribunal vide order dated 22.09.2010, the order dated 30.03.2010 impugned herein, stood merged in the said order dated 22.09.2010, which is not challenged in the instant petition preferred by the Union of India.
(Downloaded on 03/06/2025 at 09:44:21 PM) [2025:RJ-JD:23420-DB] (7 of 15) [CW-9592/2010] 4.1. Learned counsel further submitted that promotion in question has been denied to the respondent-applicant on the basis of a non- communicated ACR of 2006-07, which ought not to be considered as per the settled proposition of law on the subject. 4.2. Learned counsel also submitted that the representation made by the respondent-applicant was considered by the competent authority, who has stated it to be "at par with the required Benchmark". He further submitted that it was because of original applicant's consistent performance, he got promotions throughout his career and that his performance has been exemplary except for the year 2006-07 in which also, the performance was assessed as 'Good'. He also submitted that the respondent-applicant exceeded all the targets for the year, however, the Review DPC while considering the case of the respondent-applicant ignored the recommendations / findings of the competent authority and went ahead to declare the respondent-applicant unfit for the promotion on the post of CCIT, which is not justified in law.
4.3. Learned counsel further submitted that the petitioners have discriminated between the respondent-applicant and his colleague, who had an identical case and was granted the relief by the Chennai Bench of the Hon'ble Tribunal in the case of Sudhir Chandra vs. Union of India & Ors. (O.A.No.61 of 2010), but the former was denied the same relief claimed without any just cause and thereby acted arbitrarily in the case of the present original applicant. 4.4. Learned counsel also submitted that the decision relied upon by the petitioners in the case of Amal Satpathi (supra), which bars (Downloaded on 03/06/2025 at 09:44:21 PM) [2025:RJ-JD:23420-DB] (8 of 15) [CW-9592/2010] grant of retrospective promotion, is not applicable in the present case as the same is distinguishable on facts and that it does not lay down a strict rule that retrospective promotion cannot be granted, as ordered by the learned Tribunal in the present case. He further submitted that there are certain exceptions to the law laid down by the Hon'ble Supreme Court in the case of Amal Satpathi (supra), which included presence of service rules which permit grant of retrospective promotion, more particularly, when the action of denial of the promotion in question to the original applicant, suffers from vice of arbitrariness and discrimination, on the part of the petitioners. 4.5. Learned counsel in support of such submissions relied upon the following judgments:
(a) Dev Dutt vs Union of India, (2008) 8 SCC 725
(b) Abhijit Ghosh Dastidar vs Union of India, (2009) 16 SCC 146
(c) Prabhu Dayal Khandelwal vs Chairman, UPSC, (2015) 14 SCC 427
(d) Union of India vs G.R. Meghwal, 2016 SCC Online Raj 3204
(e) Union of India vs G.R. Meghwal, 2022 SCC Online SC 1291
(f) Union of India vs K.V. Jankiraman, (1991) 4 SCC 109
(g) State of Kerala vs E.K. Bhaskaran Pillai, (2007) 6 SCC 524
(h) Ramesh Kumar vs Union of India, (2015) 14 SCC 335
5. Heard learned counsel for the parties as well as perused the record of the case as well as the judgments cited at the Bar.
6. This Court notes that the respondent-applicant, an IRS officer of the 1976 batch serving as Commissioner of Income Tax at Jodhpur, was denied promotion to the post of Chief Commissioner of Income Tax for the year 2008-09 by the DPC held on 18.11.2008, citing his (Downloaded on 03/06/2025 at 09:44:21 PM) [2025:RJ-JD:23420-DB] (9 of 15) [CW-9592/2010] ACR for 2006-07 as below the prescribed benchmark of 'Very Good' or 'Outstanding'. Aggrieved, he initially filed O.A. No. 252/2008, which was later transferred and renumbered as O.A. No. 1540/2009 before the Principal Bench of the Tribunal, which directed the petitioners to communicate the said ACR, permit representation, and convene a Review DPC if the representation improved the rating to the required benchmark. Upon review, the respondent was again declared 'Unfit', due to lack of justification supporting the requisite benchmark. Challenging this, the respondent filed O.A. No. 5/2010, wherein the Tribunal, vide order dated 30.03.2010, directed reconsideration based on the ACR of 2001-02 in lieu of 2006-07. Aggrieved by the said order, the petitioners have preferred the present writ petition claiming the afore-quoted reliefs.
7. This court observes that since the review application challenging the original order (impugned herein) passed by the learned Tribunal was dismissed, therefore the said original order stood sustained. Hence, the present writ petition laying challenge to such original order, is maintainable under the writ jurisdiction of this Hon'ble Court and deserves adjudication on merit.
8. At the outset, this Court notes that the present matter necessitates adjudication on the following two issues:
(a) Whether the respondent-applicant satisfies the eligibility criteria and is entitled to the promotion sought by him; and
(b) If the aforesaid question is answered in the affirmative, whether such promotion may be granted to the respondent-applicant with retrospective effect along-with the other notional benefits.(Downloaded on 03/06/2025 at 09:44:21 PM)
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9. This Court further observes that promotion from the post of Commissioner of Income Tax to that of Chief Commissioner of Income Tax for the respective year, is governed by the process of selection, wherein the assessment is based on the Annual Confidential Reports (ACRs) of the preceding five years, each of which must meet the prescribed benchmark of 'Very Good'. Upon due consideration of the relevant records and any representation submitted by the officer concerned, a determination is made regarding his/her suitability by declaring the officer as either 'Fit' or 'Unfit' for promotion.
9.1. This Court further notes that it is well-settled in law, as laid down by the Hon'ble Supreme Court in Dev Dutt v. Union of India, (2008) 8 SCC 725, that an Annual Confidential Report (ACR), whether or not it meets the prescribed benchmark, must be duly communicated to a government servant or an employee of a State instrumentality within a reasonable time. The concerned employee must be afforded an opportunity to submit a representation against the said entry if he is aggrieved, particularly where such entry results in denial of benefits or causes prejudice. Relevant portion of the aforementioned judgment has been reproduced hereunder:
"13. In our opinion, every entry (and not merely a poor or adverse entry) relating to an employee under the State or an instrumentality of the State, whether in civil, judicial, police or other service (except the military) must be communicated to him, within a reasonable period, and it makes no difference whether there is a benchmark or not. Even if there is no benchmark, non-communication of an entry may adversely affect the employee's chances of promotion (or getting some other benefit), because when comparative merit is being considered for promotion (or some other benefit) a person having a "good" or "average"
or "fair" entry certainly has less chances of being selected (Downloaded on 03/06/2025 at 09:44:21 PM) [2025:RJ-JD:23420-DB] (11 of 15) [CW-9592/2010] than a person having a "very good" or "outstanding" entry.
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 entry is arbitrary, and it has been held by the Constitution Bench decision of this Court in Maneka Gandhi v. Union of India [(1978) 1 SCC 248 : AIR 1978 SC 597] that arbitrariness violates Article 14 of the Constitution."
9.2. This Court further notes that the Hon'ble Supreme Court, in Abhijit Ghosh Dastidar v. Union of India, (2009) 16 SCC 146, has authoritatively held that any uncommunicated entry in the ACR cannot be relied upon or taken into account while assessing an employee's suitability for promotion to a higher post, and must therefore be disregarded for such purpose.
10. Upon meticulous examination of the case records and in view of the applicable legal principles, this Court observes that the ACR for the year 2006-07 was not initially communicated to the respondent- applicant. However, pursuant to the respondent-applicant challenging this omission in the first round of litigation, the learned Tribunal directed the appellants to duly communicate the said ACR and afford the respondent-applicant an opportunity to submit a representation. In compliance, the respondent-applicant's representation was considered by the Reporting/Reviewing Authority, who found the performance to be "at par with the benchmark." Notwithstanding this (Downloaded on 03/06/2025 at 09:44:21 PM) [2025:RJ-JD:23420-DB] (12 of 15) [CW-9592/2010] finding, it is further noted that the Competent Authority did not formally upgrade the ACR grading from "Good" to the requisite "Very Good" benchmark, despite acknowledging that the respondent- applicant had fulfilled all departmental targets. 10.1.This Court observes that the assessment made by the Competent Authority in relation to the ACR is conclusive and not amenable to challenge on the ground of alleged discrimination, merely because the Reviewing Authority arrived at an independent assessment differing from that of the Reporting Officer. The assertion of the respondent-applicant that the Reviewing Authority's modification amounted to a downgrading of the ACR and thereby resulted in discriminatory treatment affecting his eligibility for promotion, is found to be untenable. It is evident that the respondent-applicant was not subjected to any discriminatory treatment by the appellants; rather, his candidature was duly considered and found unsuitable purely on the basis of merit. 10.2.This Court further observes that the concepts of "eligibility" and "suitability" for promotion are distinct and operate on different parameters. While "eligibility" pertains to the fulfillment of prescribed minimum qualifications or criteria and is an objective determination, "suitability" entails a more nuanced and holistic evaluation of a candidate's competence, experience, and alignment with the functional requirements of the post. It is possible for a candidate to be eligible yet be adjudged unsuitable upon such assessment. In the present case, although the respondent-applicant met the eligibility criteria based on his service record, he was ultimately found (Downloaded on 03/06/2025 at 09:44:21 PM) [2025:RJ-JD:23420-DB] (13 of 15) [CW-9592/2010] unsuitable for promotion owing to his failure to attain the requisite benchmark grading in one of the relevant years.
11. This Court further observes that the second round of litigation initiated by the respondent-applicant, challenging the decision of the Review DPC, appears to be a mere endeavour to assert a claim to promotion, notwithstanding his adjudication as unsuitable on merits by the competent authority.
12. This Court is also mindful of the decision rendered by the Hon'ble Supreme Court in Government of West Bengal & Ors. v. Dr. Amal Satpathi & Ors. (Civil Appeal No(s). 13187 of 2024, decided on 27.11.2024), wherein it was held that Articles 14 and 16(1) of the Constitution of India secure equality of opportunity in matters relating to employment and promotion. Nevertheless, the Apex Court clarified that such constitutional guarantees are confined to the right to be considered for promotion, and do not extend to an absolute right to promotion itself. Relevant portion of the judgment is produced hereunder:
"19. It is a well settled principle that promotion becomes effective from the date it is granted, rather than from the date a vacancy arises or the post is created. While the Courts have recognized the right to be considered for promotion as not only a statutory right but also a fundamental right, there is no fundamental right to the promotion itself..."
13. This Court further notes that the Tribunal's direction to consider the ACR for 2001-2002 amounts to granting a relief that was not sought by the applicant, and reflects that the Tribunal exceeded its jurisdiction by directing consideration of the applicant's candidature (Downloaded on 03/06/2025 at 09:44:21 PM) [2025:RJ-JD:23420-DB] (14 of 15) [CW-9592/2010] for promotion on the basis of past records rather than the criteria actually prescribed for promotion.
14. This Court further observes that the decision in Sudhir Chandra (supra), as relied upon by the respondent-applicant, is inapplicable to the present case. A distinguishing feature is that, in the former case was an exception, where the ACR under consideration pertained to a period of approximately four months and, for similar reasons, was rounded off to 'very good', ie. the benchmark. In contrast, no such circumstance exists in the present matter. Furthermore, the ACR in the instant case was finalized by the reviewing authority after due consideration of the respondent- applicant's performance over the entirety of a one-year period.
15. In view of the foregoing observations, and having regard to the facts and circumstances of the present case as well as the precedents cited at the Bar, this Court is of the considered opinion that promotion is not a vested right. Even if the respondent was eligible, he was correctly found unsuitable/unfit solely on the basis of his ACRs for the preceding five years, and not due to any bias, by the DPC convened on 18.11.2009 for promotion to the post of CCIT. Hence, the respondent-applicant cannot assert a right to promotion. The appellants have not infringed his right to be considered for promotion.
16. This Court also observes that as the first issue has been adjudicated in favour of the appellants, there remains no necessity to examine the second issue.
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17. Thus, in view of the above, the present writ petition is allowed, while quashing and setting aside the impugned order dated 30.03.2010 passed in Original Application No.5/2010 by the learned Tribunal. All pending applications stand disposed of. (CHANDRA PRAKASH SHRIMALI),J (DR.PUSHPENDRA SINGH BHATI),J SKant/-
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