Delhi High Court

Surender Singh vs Uoi And Ors on 29 August, 2012

Author: Gita Mittal

18
*       IN THE HIGH COURT OF DELHI AT NEW DELHI

              CM Nos.19721/2011 & 4974/2012 in
                   +   W.P.(C) 8727/2011

%                               Date of decision: 29th August, 2012

      SURENDER SINGH            ..... Petitioner
                   Through : Ms. Esha Mazumdar, Adv.

                      versus

      UOI AND ORS                     ..... Respondents
                           Through : Mr. Sanjiv Kumar Saxena and
                                     Mr. Mukesh Kumar Tiwari,
                                     Advs. for Mr. Ruchir Mishra,
                                     Adv.
       CORAM:
       HON'BLE MS. JUSTICE GITA MITTAL
       HON'BLE MR. JUSTICE J.R. MIDHA

                          JUDGMENT (ORAL)

1. The petitioner before us assails the order dated 6 th

August, 2011 passed by the respondents informing him that he

has not been promoted to the post of Head Constable with the

Indo Tibetan Border Police (ITBP) denying him promotion to the

post of Head Constable. The undisputed facts giving rise to

the present petition are noticed hereafter.

2. The petitioner had joined the ITBP as Constable/GD on

11th March, 1993. Between 1993 to 2011, the petitioner was

posted at various places in the country. The writ petition

claims that in 2011, by an order passed on 25 th July, 2011, the

petitioner was promoted to the post of Head Constable but was

not given charge in this promoted post. He was orally

informed that his promotion has not been given effect to

because of adverse entry in his annual confidential report for

the year 2007. The petitioner‟s representation made on 27 th

July, 2011 to the effect that he has never been communicated

any adverse remark in the ACR of 2007 and that his promotion

ought to be given effect to met with no success. Instead, the

respondents issued a letter dated 6th August, 2011 reiterating

their above stand that the petitioner was not allowed to take

charge to his promoted post because of the adverse grading in

the ACR for the year 2007. The petitioner served a legal notice

on 18th August, 2011 in view of the above to the respondents

to give effect to their order of promotion which was still denied

to him by the reply dated 3rd October, 2011. The respondents

also placed reliance on Rule 7(7) of the Swamy‟s Compilation

on Confidential Reports of Central Government Employees

therein.

3. Aggrieved by the above, the present writ petition has

been filed by the writ petitioner primarily relying on the judicial

pronouncements of the Supreme Court of India to the effect

that adverse entries in the ACRs are required to be served

upon the person concerned. The writ petitioner also challenges

the respondent‟s reliance on the aforenoticed Rule 7(7) of the

Swamy‟s Compilation on Confidential Reports of Central

Government Employees contending that the same is just a

compilation of principles which are not statutory rules and

cannot overwrite the law laid down by the Supreme Court of

India. In the counter affidavit, the respondents have reiterated

the above position and have further taken a plea that the

pronouncement of the Supreme Court of India relied upon by

the petitioner reported at (2008) 2 SCC (L&S) 771 titled Dev

Dutt v. Union of India & Others was rendered on 12th May,

2008 and therefore, would not govern the instant case which is

concerned with the ACR for the year 2007.

4. We have heard learned counsel for the parties and given

a considered thought to the matter. So far as the legal

position is concerned, the same is no longer res-integra and

has been settled by the pronouncement of the apex court in

Dev Dutt v. Union of India (Supra). Several pronouncements

prior thereto laying down the applicable principles have been

referred to in Dev Dutt v. Union of India (Supra). We find

that the court placed reliance on the pronouncement reported

at AIR 1988 SC 2060 titled Vijay Kumar v. State of

Maharashtra & Others wherein it was held that an un-

communicated adverse report should not form the foundation

to deny the benefits to a government servant when similar

benefits are extended to his juniors.

5. The reference has also been made to the pronouncement

reported at 1999 (1) SCC 529 titled State of Gujarat and

Another v. Suryakant Chunilal Shah wherein it was held as

follows:-

"Purpose of adverse entries is primarily to forewarn the Govt. servant to mend his ways and to improve his performance. That is why, it is required to communicate the adverse entries so that the Govt. servant, to whom the adverse entry is given, may have either opportunity to explain his conduct so as to show that the adverse entry was wholly uncalled for, or to silently brood over the matter and on being convinced that his previous conduct justified such an entry, to improve his performance."

6. In Dev Dutt v. Union of India (Supra), the petitioner

had been awarded a „good‟ entry in his ACR for the year 1993-

94 for which reason he was not considered for promotion to

the post of Superintending Engineer, the benchmark be a ‟very

good‟ report. The respondents had contended that a „good‟

ACR was not an adverse report and therefore, did not require

to be communicated. In this background, the court had held

that "non-communication of entries in the Annual Confidential

Report of a public servant, whether he is civil, judicial, police or

any other service (other than the military), certainly has civil

consequences before it may affect his chances for promotion

or get other benefits (as already discussed above). Hence such

non-communication would be arbitrary, and as such violative

of Article 14 of the Constitution".

7. In the case before us, we are concerned with the

Constable with the ITBP which is a para military organization

and the principles laid down by the court in the forgoing

judgments and the authoritative pronouncement in Dev Dutt

v. Union of India (Supra) have to guide adjudication. The

same bind the respondents who have failed to communicate

the adverse entry in the 2007 ACR to the petitioner which has

formed the basis for denial of the posting to him in the rank of

a Head Constable, even though he had been actually found fit

for promotion and the respondents had even actually issued a

order of promotion.

8. So far as the respondent‟s reliance on Rule 7(7) of the

Swamy‟s Compilation on Confidential Reports of Central

Government Employees is concerned, we find that similar

reliance was placed on an office memorandum by the

respondents before the Supreme Court of India in Dev Dutt v.

Union of India (Supra). In this case, the court had held that

no rule or government instruction can violate Article 14 or any

other provision of the Constitution. In this regard the

observations of the Supreme Court of India in para 12 of the

pronouncement in Dev Dutt v. Union of India (Supra) may

be usefully adverted to and read as follows:-

"12. Learned Counsel for the respondent submitted that under the Office Memorandum 21011/4/87 [Estt.'A'] issued by the Ministry of Personnel/Public Grievance and Pensions dated 10/11.09.1987, only an adverse entry is to be communicated to the concerned employee. It is well settled that no rule or government instruction can violate Article 14 or any other provision of the Constitution, as the Constitution is the highest law of the land. The aforesaid Office Memorandum, if it is interpreted to mean that only adverse entries are to be communicated to the concerned employee and not other entries, would in our opinion become arbitrary and hence illegal being violative of Article 14. All similar Rules/Government Orders/Office Memoranda, in respect of all services under the State, whether civil, judicial, police, or other service (except the military), will hence also be illegal and are therefore liable to be ignored."

Thus, Rule 7(7), even if considered binding, if restricting

communication of ACRs to only adverse entries would be illegal

as it violates Article 14 of the Constitution. The same cannot

control or guide the actions of the respondents.

9. In this background, having regard to the aforenoticed

well settled principles of law, we direct as follows:-

(i) The order dated 6th August, 2011 passed by the

respondents against the petitioner is hereby set aside and

quashed.

(ii) The respondents are directed to communicate the

adverse entries in the ACR for the year 2007 to the petitioner

within a period of six weeks from today.