Allahabad High Court
Union Of India And Another vs Shri A.P. Singh And Others on 17 August, 2017
Bench: Amreshwar Pratap Sahi, Rajiv Lochan Mehrotra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?A.F.R.
Court No. - 37
Case :- WRIT - A No. - 45738 of 2010
Petitioner :- Union Of India And Another
Respondent :- Shri A.P. Singh And Others
Counsel for Petitioner :- Satish Chaturvedi,Sanjai Kumar Om
Counsel for Respondent :- S.C.
Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Rajiv Lochan Mehrotra,J.
Heard Shri S.K. Om, learned counsel for the petitioner, Union of India and the CPWD through its Director General of Works who are before this Court questioning the correctness of the order of the Central Administrative Tribunal dated 4th March, 2009. At the initial stage, the writ petition was entertained and noticing the conflict between two decisions of the Apex Court on the issue of communication of entries in the character roll of an employee, an interim order was passed on 4th August, 2010 in the following terms:-
"Admit.
Issue notice to respondent nos. 1 and 3 to 32. The respondents are allowed four weeks' time to file counter affidavit. The petitioners will have one week thereafter to file rejoinder affidavit.
List on 21.9.2010.
The Central Administrative Tribunal has allowed the Original Application No. 503 of 1996 on 4.3.2009, relying upon Dev Dutt vs. Union of India and others (2008) 2 SCC (L&S) 771. The Tribunal has also relied upon Vijay Kumar vs. State of Maharashtra 1988 SCC (L&S) 42 and State of Gujarat vs. Suryakant Chunilal Shah (1999) SCC (L&S) 313, and has held that since a 'good' entry can be a ground to refuse promotion as the applicant could not clear the benchmark, it has to be treated as adverse for limited purpose to be communicated for a possible upgradation. The Tribunal thereafter held that since the bench mark has been changed by O.M. dated 10.4.1989, the 'good' entry be communicated to applicant to allow him to make a representation, if the applicant so desired within two months and if the entry is upgraded, the applicant should be considered for promotion by the Departmental Promotion Committee to be convened within three months with all consequential benefits.
It is submitted by Shri Satish Chaturvedi that the judgment in Dev Dutt's case was found to be laying down position of law, which is contrary to Satya Narain Shukla vs. Union of India 2006 (9) SCC 69 and K.M. Mishra vs. Central Bank of India and others 2008 (9) SCC 120. The Supreme Court has noticed the apparent conflict between the decision and thus in Union of India vs. A.K. Goel Special Leave to Appeal (Civil) No. 15770/2009 the Supreme Court has by its order dated 29.3.2010 referred the matter to the Larger Bench. The order is quoted as below:-
"Leave granted.
In view of the apparent conflict between the decisions of this Court in Dev Dutt vs. Union of India & Ors, 2008 (8) SCC 725 on the one hand and Satya Narain Shukla vs. Union of India 2006 (9) SCC 69 and K.M. Mishra vs. Central Bank of India and others 2008 (9) SCC 120, these appeals are referred to a Larger Bench. Let the matter be placed before the Hon'ble the Chief Justice of India for this purpose.
(O.P. Sharma) (M.S. Negi)
Court Master Court Master"
It is submitted that the decision in K.M. Mishra was rendered on September 16, 2008, later than the decision in Dev Dutt's case and thus as later decision, even if the view was taken without noticing Dev Dutt's case, it should be ordinarily followed by the Tribunal.
We prima facie find substance in the contention that if there is a conflict between two decisions, the settled practice is to follow the later decision, until the conflict is resolved.
In K.M. Mishra the Supreme Court held that unless the rules so provide, it is not necessary to communicate the entry which is not of adverse nature.
Relying upon the later decision, and until the conflict is resolved, we direct that the operation of the impugned order of the Central Administrative Tribunal dated 4.3.2009 in O.A. No. 503/1996 A.P. Singh vs. Union of India, shall remain stayed."
The said conflict has now been resolved by a larger bench of the Supreme Court in the case of Sukhdev Singh Vs. Union of India reported in 2013(6) SCALE 490. Paragraphs 8 and 9 of which are extracted herein-below:-
" 8. In our opinion, the view taken in Dev Dutt that every entry in ACR of a public servant must be communicated to him/her within a reasonable period is legally sound and helps in achieving threefold objectives. First, the communication of every entry in the ACR to a public servant helps him/her to work harder and achieve more that helps him in improving his work and give better results. Second and equally important, on being made aware of the entry in the ACR, the public servant may feel dissatisfied with the same. Communication of the entry enables him/her to make representation for upgradation of the remarks entered in the ACR. Third, communication of every entry in the ACR brings transparency in recording the remarks relating to a public servant and the system becomes more conforming to the principles of natural justice. We, accordingly, hold that every entry in ACR-poor, fair, average, good or very good- must be communicated to him/her within a reasonable period.
9. The decisions of this Court in Satya Narain Shukla Vs. Union of India and 30 others and K.M. Mishra Vs. Central Bank of India and others and the other decisions of this Court taking a contrary view are declared to be not laying down a good law. "
The issue has been answered which supports the view taken by the Tribunal. We have, therefore, not been able to find any reason so as to interfere with the impugned order of the Tribunal. The Tribunal has categorically recorded that since the Departmental Promotion Committee did not adhere to the procedure of selection as laid down in the Office Memorandum dated 10th April, 1989 the matter required a consideration after communication of all the entries to the affected persons.
The aforesaid finding of the Tribunal is perfectly in consonance with the law laid down by the Apex Court as referred to herein-above. There is no merit in the petition and is, accordingly, rejected. Interim order, if any, stands discharged.
Order Date :- 17.8.2017
BKM/-
