Union Of India And Ors vs Narendra Kumar Jain And Ors
2025 Latest Caselaw 1459 Raj

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:

[2025:RJ-JD:23420-DB] (2 of 15) [CW-9592/2010]

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

[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

[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

[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.

[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.

[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

[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

(c) Prabhu Dayal Khandelwal vs Chairman, UPSC, (2015) 14 SCC 427

(d) Union of India vs G.R. Meghwal, 2016 SCC Online Raj

(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

[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.

[2025:RJ-JD:23420-DB] (10 of 15) [CW-9592/2010]

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

[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

[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

[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

[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.

[2025:RJ-JD:23420-DB] (15 of 15) [CW-9592/2010]

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/-

Powered by TCPDF (www.tcpdf.org)