Telangana High Court
Y. Lakshmana Rao vs The Union Of India on 24 April, 2023
Bench: Ujjal Bhuyan, N.Tukaramji
THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
AND
THE HON'BLE SRI JUSTICE N. TUKARAMJI
+ WRIT PETITION No.15979 of 2019
% Date: 24.04.2023
# Y.Lakshmana Rao
... Petitioner
v.
$ The Union of India, Rep. By its Secretary, Department of
Space, ISRO Head Quarters, New BEL Road, Antriksh Bhavan,
Bangalore-5,
and others.
... Respondents
! Counsel for the petitioner : Dr. P.B.Vijay Kumar,
learned Senior Counsel, representing
Ms. A.V.S.Laxmi
^ Counsel for respondents No.1 to 3: Mr. Gadi Praveen Kumar,
Deputy Solicitor General of India.
< GIST:
HEAD NOTE:
? CASES REFERRED:
1. (2008) 8 SCC 725
2. 2012 SCC Online CAT 4128
3. (2009) 16 SCC 146
4. (2013) 9 SCC 566
5. (2018) 18 SCC 640
2
THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
AND
THE HON'BLE SRI JUSTICE N. TUKARAMJI
WRIT PETITION No.15979 of 2019
ORDER: (Per the Hon'ble the Chief Justice Ujjal Bhuyan)
Heard Dr.P.B.Vijay Kumar, learned Senior Counsel
representing Ms. A.V.S.Laxmi, learned counsel for the
petitioner and Mr. Gadi Praveen Kumar, learned Deputy
Solicitor General of India representing respondents
No.1 to 3.
2. This writ petition has been filed assailing the legality
and correctness of the order dated 26.04.2019 passed by
the Central Administrative Tribunal, Hyderabad Bench,
Hyderabad (CAT) in O.A.No.21/1076/2015 (Y.Lakshmana
Rao v. Union of India).
3. By the aforesaid order, the original application filed
by the petitioner assailing the decision of the respondents
therein (hereinafter referred to as, the respondents) in not
3
promoting the petitioner as Scientist/Engineer SE with
effect from 01.07.2008 was rejected by CAT firstly on the
ground that there was no infirmity in the decision of the
respondents and secondly, the original application was
filed belatedly after seven years in 2015.
4. Facts lie within a very narrow compass. Petitioner
joined Indian Space Research Organization (ISRO) as
Technical Assistant-B in 1988. In the course of his service,
he was promoted to the rank of Scientist/Engineer SD in
the year 2004. He was due to be promoted as
Scientist/Engineer SE in the year 2008 but was not
considered by the Screening Committee/Departmental
Promotion Committee (DPC, for short) till the year 2014.
On 01.07.2014, petitioner was promoted as
Scientist/Engineer SE. Petitioner made several
representations seeking his promotion with effect from
01.07.2008. As his request was not considered, he had
filed the original application before CAT.
4
4.1. Respondents had filed objection by contending that
petitioner was accommodated at Advanced Data Processing
Research Institute (ADRIN), Secunderabad in 1996 on
request transfer from Bangalore. In the course of his
service career, he was given due promotion. He was due
for promotion from Scientist/Engineer SD to
Scientist/Engineer SE in the year 2008 after completing
residency period of four years as Scientist/Engineer SD.
At the time of his consideration, his service details were
placed before the Screening Committee as to whether case
of the petitioner should be recommended for consideration
by DPC. As the petitioner could not measure up to the
requirement standards, he could not clear Screening
Committee till 2011. Though he could clear Screening
Committee in 2011 and 2012, he did not fare well in DPC.
Hence, he was not promoted. Ultimately, he was screened
by the selection committee and on recommendation to DPC
he was cleared by the DPC in the year 2014, whereafter he
was promoted to the rank of Scientist/Engineer SE with
5
effect from 01.07.2014. Stand taken was that according to
the scheme of ISRO, once an employee completes the
residency period, he would be considered for promotion
based on Annual Performance Appraisal Report (APAR) and
other performance parameters. It was only when the
petitioner was found fit for promotion that he was selected
by DPC and ultimately promoted with effect from
01.07.2014.
4.2. CAT noted that ISRO has an elaborate system of
setting up of Screening Committee which filters the
candidates based on APAR etc. To usher in objectivity,
APARs have been allotted marks as under:
Grade Marks
A+ Brilliant 10
A Outstanding 9
AA- Tending to Outstanding 8
A- Very good 7
B+ Good 6
B Average 5
B- Just worth retaining 4
C- Not worth retaining in service 2
6
4.3. In addition thereto, the Screening Committee
considers other parameters such as biodata of the
employee, work report for the relevant period,
recommendation of the office, any special contribution etc.
Once a candidate is screened in by the Screening
Committee, he would be entitled to appear before DPC.
However, if it is remarked that "relook after six months",
then the employee has to appear before the next Screening
Committee with fresh data. "Screened out" would mean
employee would have to appear after one year before the
Screening Committee with fresh records. Thus, according
to CAT, respondents have developed an objective system of
assessment at two levels: firstly, at the level of Screening
Committee and thereafter at the level of DPC.
4.4. Based on the guidelines issued by ISRO, performance
of the petitioner was screened over the years till he got
promoted in the year 2014. Thereafter, CAT recorded the
7
assessment of the petitioner from 01.07.2008 till
01.01.2014 as under:
Sl.No. Review date No.of years Screening Result
1 1.7.2008 4 Relook after 6 months
2 1.1.2009 4.5 Screened out
3 1.1.2010 5.5 Relook after 6 months
4 1.7.2010 6 Relook after 6 months
5 1.1.2011 6.5 Screened-in deferred in
interview
6 1.1.2012 7.5 Screened-in deferred in
interview
7 1.1.2013 8.5 Cooling off
8 1.1.2014 9.5 Screened in-promoted
w.e.f.1.7.2014
4.5. Rejecting the contention of the petitioner that
Screening Committee did not give reasons for rejecting his
case, CAT held that the Screening Committee had adduced
reasons in the following manner:
"After considering the ACRs, work report,
recommendations of the divisional head and other
relevant facts the recommendations are made."
8
4.6. When the petitioner sought for minutes of the
Screening Committee proceedings, respondents informed
CAT that they did not have the record. CAT observed that
it cannot sit on judgment on the finding of the Screening
Committee or for that matter DPC. That apart, after
participating in the process of selection, it is not open to
the petitioner to question the result thereof after he was
unsuccessful. CAT further observed that system of
evaluation was transparent and objective by quantifying
APAR grading and by giving opportunity to the employees
to try for promotion by bringing in concepts of screening in,
deferred, cooled, screened out etc. That apart, there was
delay of about seven years in filing the original application.
Petitioner sought for a direction for promoting him with
effect from 01.07.2008, but filed the original application in
the year 2015. Therefore, both on merit as well as on
delay, the original application was dismissed by CAT vide
the order dated 26.04.2019.
9
5. It is this order which is under assailment in the
present proceeding.
6. The writ petition was admitted for hearing on
13.07.2021. In the course of the hearing on 12.12.2022,
we had called upon Mr. Gadi Praveen Kumar, learned
Deputy Solicitor General of India to submit a copy of the
rules/regulations governing promotion of Scientists in
ISRO. It was thereafter that a memo was filed by the
respondents.
7. In their counter affidavit respondents have justified
the promotion of the petitioner with effect from 01.07.2014
and not from 01.07.2008. Adverting to the screening
guidelines dated 02.11.2006, it is stated that for the last
two years of the residency period, the grading should not
be less than A-. Residency period of four years should be
considered for promotion to the post of Scientist/Engineer
SE. Petitioner was assigned overall grading of B+/A- for
the calendar year 2006; B+ indicates "good" and A-
10
indicates "very good". Screening Committee after
considering all relevant factors including Annual
Confidential Reports (ACRs)/APARs had remarked in
various proceedings qua the petitioner as "relooked after
six months", "screened out" etc., till ultimately he was
screened in and promoted with effect from 01.07.2014. As
per guidelines, an employee should have minimum grading
of 2A (outstanding) and 2AA- (tending to outstanding) as
on 01.07.2008 on completion of four years of residency
period as Scientist/Engineer SD. As petitioner did not
meet the minimum requirement, his case was
recommended for relook after six months. After six months
also as per guidelines, petitioner should have minimum
one A and three AA- which the petitioner did not meet.
Therefore, petitioner was screened out. Case of the
petitioner was considered as on 01.01.2010 after one year
in which Screening Committee recommended for a relook
after six months. His case was considered on 01.07.2010
after six years of residency period but Screening Committee
11
recommended relook after six years. This went on till
01.01.2014 when petitioner after 9½ years of residency
period was screened in and was interviewed by the DPC.
Based on his performance, he was recommended for
promotion with effect from 01.07.2014 and accordingly, he
was promoted to the post of Scientist/Engineer SE. It is
stated that as per the guidelines only adverse remarks in
ACRs were required to be communicated to the concerned
employee. Gradings given to the petitioner were not
considered as adverse.
8. In his rejoinder affidavit, petitioner has contended
that respondents had acted upon uncommunicated
confidential reports i.e., ACRs of the petitioner, which were
below the benchmark. This could be noticed from the
stand taken by the respondents in the counter affidavit.
9. In the memo filed by the respondents on 22.12.2022
in response to this court's order dated 12.12.2022, office
memorandum dated 22.02.1988 has been placed on record
12
which deals with promotion of Scientists/Engineers in
ISRO.
9.1. Minimum eligibility period for promotion from SD to
SE is four years. In the procedure for screening, it is
stated that the Screening Committee will consider each
case carefully and objectively and make suitable
recommendation after examining the work report of each
individual, ACR assessment, recommendation of the
Divisional/Unit Head etc.
10. Learned Senior Counsel for the petitioner strongly
argued that firstly, Screening Committee had erred in
acting upon uncommunicated APARs of the petitioner.
This is not permissible in view of the law laid down by the
Supreme Court in Dev Dutt v. Union of India1 which has
been followed by the Ernakulam Bench of Central
Administrative Tribunal in Saji K. Sam v. Director, ISRO2
1
(2008) 8 SCC 725
2
2012 SCC Online CAT 4128
13
which decision has been affirmed by the High Court of
Kerala.
10.1. Insofar delay is concerned, learned Senior Counsel
for the petitioner submits that petitioner had represented
before the authority and only after the representations
were rejected on 13.07.2015, he had approached CAT by
filing O.A.No.21/1076/2015. Thus, there was no delay in
filing the original application before CAT. Therefore, CAT
had erred in rejecting the original application of the
petitioner.
11. On the other hand, learned Deputy Solicitor General
of India submits that petitioner ought to have minimum
grading of 2A (outstanding) and 2AA- (tending to
outstanding) as on 01.07.2008 on completion of four years
of residency period. Petitioner had B+ (good)/A- (very good)
in the year 2006. Therefore, he had fallen short of the
minimum requirement for which his case was
recommended for relook after six months. This process
14
went on till he was finally found fit for promotion. He
submits that as per executive instruction, only adverse
remarks in ACRs/APARs are required to be communicated
to the concerned employee. A remark of "good" or "very
good" cannot be construed to be adverse. Therefore, there
was no error in not communicating such remarks in the
case of the petitioner. Screening Committee as well as the
DPC had objectively assessed the petitioner from
01.07.2008 till 01.01.2014. Contending that the order of
CAT does not suffer from any infirmity, he seeks dismissal
of the writ petition.
12. Submissions made by learned counsel for the parties
have received the due consideration of the court.
13. At the outset, we may consider the ground of delay
which was also held against the petitioner by CAT.
According to CAT, petitioner had sought for promotion with
effect from 01.07.2008 but filed the original application
15
seven years thereafter in the year 2015. Such belated
claim could not be considered.
14. It is true that in matters of promotion, challenge to
non-consideration for promotion has to be made at the
earliest. Supreme Court has observed that a period of
three or four years would be considered as reasonable for
launching a challenge to non-consideration for promotion.
This is so because if there is a delayed challenge it may
unsettle settled positions by reopening promotions of third
persons. Supreme Court had given the example of a
scrambled egg which cannot be unscrambled. There is no
dispute to such a proposition. But insofar the present case
is concerned, petitioner has not claimed promotion qua
other employees of ISRO. Rather, he had sought for the
benefit of promotion for himself with effect from
01.07.2008. Moreover, since petitioner has superannuated
from service on 31.01.2020, all that he would be entitled to
in the event he succeeds is notional benefit and benefits
that may accrue to him post superannuation. However,
16
factually speaking, petitioner has stated in the writ
affidavit that he had submitted representations on
21.09.2012, 04.10.2012, 10.12.2014, 19.01.2015 and
finally on 25.02.2015 before the respondents to consider
his case for promotion to the next higher grade of
Scientist/Engineer SE with effect from 01.07.2008. All his
representations were finally rejected by respondent No.2 on
13.07.2015 whereafter he filed the related original
application. Therefore, on such fact situation it cannot be
said that there was delay on the part of the petitioner in
instituting the challenge.
15. Insofar merit is concerned, it is the admitted position
that petitioner did not meet the benchmark of having
minimum 2A and 2AA- during the four years of residency
period. According to the respondents, petitioner had
gradings of B+ (good) and A- (very good); such gradings
could not be construed to be adverse to the petitioner and
therefore those were not communicated. However, the
Screening Committee duly considered the APARs as well as
17
other performance parameters of the petitioner and did not
find him to be fit to be recommended to DPC for
consideration till 01.01.2014.
16. In Dev Dutt (supra), Supreme Court was considering
the case of an employee in Border Roads Engineering
Service who was not considered for promotion to the post
of Executive Engineer. Rather, his juniors were selected
and promoted to the post of Superintending Engineer by
the DPC. This was unsuccessfully challenged before a
Single Bench of the Gauhati High Court; his appeal before
the Division Bench also resulted in failure. Thereafter, he
approached the Supreme Court. In the above factual
backdrop, Supreme Court held that 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: firstly, had the entry been communicated to him he
would know about the assessment of his work and conduct
18
by his superiors, which would enable him to improve his
work in future; secondly, he would have an opportunity of
making a representation against the entry if he feels it is
unjustified and pray for its upgradation. Supreme Court
held that non-communication of an entry in ACR is
arbitrary and thus violative of Article 14 of the Constitution
of India. Supreme Court held as follows:
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.
19
18. Thus, it is not only when there is a benchmark
but in all cases that an entry (whether it is poor, fair,
average, good or very good) must be communicated to a
public servant, otherwise there is violation of the
principle of fairness, which is the soul of natural justice.
Even an outstanding entry should be communicated
since that would boost the morale of the employee and
make him work harder.
***
22. It may be mentioned that communication of
entries and giving opportunity to represent against them
is particularly important on higher posts which are in a
pyramidical structure where often the principle of
elimination is followed in selection for promotion, and
even a single entry can destroy the career of an officer
which has otherwise been outstanding throughout. This
often results in grave injustice and heart-burning, and
may shatter the morale of many good officers who are
superseded due to this arbitrariness, while officers of
inferior merit may be promoted.
***
36. In the present case, we are developing the
principles of natural justice by holding that fairness and
transparency in public administration requires that all
entries (whether poor, fair, average, good or very good) in
the annual confidential report of a public servant,
whether in civil, judicial, police or any other State
service (except the military), must be communicated to
him within a reasonable period so that he can make a
representation for its upgradation. This in our opinion is
the correct legal position even though there may be no
rule/G.O. requiring communication of the entry, or even
if there is a rule/G.O. prohibiting it, because the
principle of non-arbitrariness in State action as
envisaged by Article 14 of the Constitution in our
opinion requires such communication. Article 14 will
override all rules or government orders.
37. We further hold that when the entry is
communicated to him the public servant should have a
right to make a representation against the entry to the
authority concerned, and the authority concerned must
decide the representation in a fair manner and within a
reasonable period. We also hold that the representation
must be decided by an authority higher than the one
who gave the entry, otherwise the likelihood is that the
representation will be summarily rejected without
adequate consideration as it would be an appeal from
Caesar to Caesar. All this would be conducive to fairness
and transparency in public administration, and would
result in fairness to public servants. The State must be
a model employer, and must act fairly towards its
employees. Only then would good governance be
possible.
***
41. In our opinion, non-communication of entries in
the annual confidential report of a public servant,
whether he is in civil, judicial, police or any other service
(other than the military), certainly has civil
consequences because 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.
17. We may mention that on the face of it a grading of
"good" or "very good" may not appear to be adverse to an
employee. But if the benchmark is fixed above such
grading, for example, "outstanding", then in such an event,
a grading of "good" or "very good" would be adverse to the
employee in the facts and circumstances of the case. In
any event, such an entry would have to be communicated
to the concerned employee.
18. This decision of the Supreme Court in Dev Dutt
(supra) was referred to by a three judge Bench of the
Supreme Court in Abhijit Ghosh Dastidar v. Union of
India3. In that case the benchmark fixed was "very good"
and appellant had got the grading of "good" which was not
communicated to him. In that context, Supreme Court
held that entry of "good" should have been communicated
to the appellant. Supreme Court held as under:
8. Coming to the second aspect, that though the
benchmark "very good" is required for being considered
for promotion, admittedly the entry of "good" was not
communicated to the appellant. The entry of "good"
should have been communicated to him as he was
having "very good" in the previous year. In those
circumstances, in our opinion, non-communication of
entries in the annual confidential report of a public
servant whether he is in civil, judicial, police or any
other service (other than the armed forces), it has civil
consequences because it may affect his chances of
promotion or getting other benefits. Hence, such non-
communication would be arbitrary, and as such
violative of Article 14 of the Constitution. The same view
has been reiterated in the abovereferred decision (Dev
Dutt v. Union of India [(2008) 8 SCC 725 : (2008) 2
SCC (L&S) 771 : (2008) 7 Scale 403] , SCC p. 738, para
41) relied on by the appellant. Therefore, the entries
"good" if at all granted to the appellant, the same should
not have been taken into consideration for being
(2009) 16 SCC 146
considered for promotion to the higher grade. The
respondent has no case that the appellant had ever been
informed of the nature of the grading given to him.
19. A three judge Bench of the Supreme Court in
Sukhdev Singh v. Union of India4 considered the
correctness of the above decision of the Supreme Court in
Dev Dutt (supra). After referring to the observations and
findings rendered in Dev Dutt (supra), Supreme Court in
Sukhdev Singh (supra) expressed complete agreement
with the views expressed in Dev Dutt (supra) and approved
the same. Supreme Court further held that the view taken
in Dev Dutt (supra) that every entry in ACR of a public
servant must be communicated to him within a reasonable
period is legally sound and helps in achieving threefold
objectives. Firstly, communication of every entry in the
ACR to a public servant helps him to work harder and
achieve more that helps in improving his work. Secondly,
on being made aware of the entry in the ACR, the public
(2013) 9 SCC 566
servant may feel dissatisfied with the same.
Communication of the entry would enable him to make a
representation for upgradation of the remarks entered in
the ACR. Thirdly, 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. It has been
held as follows:
6. We are in complete agreement with the view
in Dev Dutt v. Union of India, [(2008) 8 SCC 725 :
(2008) 2 SCC (L&S) 771] particularly paras 17, 18, 22,
37 and 41 as quoted above. We approve the same.
***
8. In our opinion, the view taken in Dev
Dutt v. Union of India, [(2008) 8 SCC 725 : (2008) 2
SCC (L&S) 771] 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.
20. Thus, it has emphatically been held by the Supreme
Court that every entry in the ACR - poor, fair, average,
good or very good, must be communicated to the public
servant within a reasonable period.
21. This is also the view taken by the Supreme Court in
Rukhsana Shaheen Khan v. Union of India5.
22. That being the position, we are of the view that
consideration of the case of the petitioner by the Screening
Committee and DPC stood vitiated on account of acting on
(2018) 18 SCC 640
the uncommunicated remarks in the ACRs/APARs of the
petitioner for the relevant period. Case of the petitioner for
promotion to the post of Scientist/Engineer SE from an
anterior date is therefore required to be reconsidered by the
DPC either by ignoring the uncommunicated remarks in
the ACRs for the related residency period or by giving an
opportunity to the petitioner to represent against such ACR
gradings. If the petitioner represents against such ACR
gradings, the same may be considered and based on such
consideration or in the event of ignoring the
uncommunicated remarks, case of the petitioner may be
placed again before the DPC to reconsider promotion to the
post of Scientist/Engineer SE with effect from 01.07.2008.
23. Ordered accordingly.
24. Let the entire exercise be completed within a period of
six months from the date of receipt of a copy of this order.
25. Since the petitioner has already superannuated from
service, the benefits accruable to the petitioner, in the
event of successful reconsideration, would be notionally
fixed only for the purpose of retirement benefits.
26. Consequently, order dated 26.04.2019 of CAT is set
aside.
27. Writ petition is accordingly allowed to the extent
indicated above.
Miscellaneous applications pending, if any, shall
stand closed. However, there shall be no order as to costs.
______________________________________
UJJAL BHUYAN, CJ
______________________________________
N. TUKARAMJI, J
24.04.2023
Note: LR copy to be marked.
B/o.
vs
