2008 (5) TMI 632 - SC - Indian Laws

Whether 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?

Summary

Issues Involved:
1. Eligibility for Promotion
2. Communication of Annual Confidential Reports (ACRs)
3. Violation of Natural Justice
4. Arbitrariness and Article 14 of the Constitution
5. Consequences of Non-Communication of Entries

Detailed Analysis:

1. Eligibility for Promotion
The appellant, serving in the Border Roads Engineering Service, was eligible for promotion to the post of Superintending Engineer after completing five years as an Executive Engineer on 21.2.1993. Despite being eligible, the appellant was not promoted during the Departmental Promotion Committee (DPC) meeting on 16.12.1994, while his juniors were promoted. The appellant contended that his non-promotion was due to a 'good' entry in his Annual Confidential Report (ACR) for the year 1993-94, which was not communicated to him.

2. Communication of Annual Confidential Reports (ACRs)
The core issue revolved around whether a 'good' entry in the ACR, which did not meet the 'very good' benchmark required for promotion, should have been communicated to the appellant. The respondent argued that only adverse entries need to be communicated, citing the Office Memorandum dated 10/11.09.1987 and previous Supreme Court decisions. However, the court opined that every entry, regardless of its nature, must be communicated to the employee to allow for representation and potential upgradation.

3. Violation of Natural Justice
The appellant argued that the non-communication of the 'good' entry violated the principles of natural justice, as it deprived him of the opportunity to make a representation for its upgradation. The court agreed, emphasizing that fairness in administrative actions requires that all entries in the ACR be communicated to the concerned employee. This would enable the employee to know the assessment of his work and conduct by his superiors and to improve his performance or challenge the entry if unjustified.

4. Arbitrariness and Article 14 of the Constitution
The court held that non-communication of any entry in the ACR is arbitrary and violative of Article 14 of the Constitution, which guarantees equality before the law. The court cited the Constitution Bench decision in Maneka Gandhi vs. Union of India, which held that arbitrariness violates Article 14. The court further stated that any rule or government instruction that permits non-communication of entries is arbitrary and hence illegal.

5. Consequences of Non-Communication of Entries
The court highlighted that non-communication of entries could have serious adverse consequences on an employee's chances of promotion or other benefits. For instance, if the benchmark for promotion is 'very good' entries for the last five years, a single 'good' entry, if uncommunicated, could eliminate the candidate from consideration for promotion. The court emphasized that fairness and transparency in public administration necessitate the communication of all entries, whether poor, fair, average, good, or very good.

Conclusion
The Supreme Court set aside the judgments of the Learned Single Judge and the Division Bench of the Gauhati High Court. The court directed that the 'good' entry for the year 1993-94 be communicated to the appellant forthwith, allowing him to make a representation for its upgradation. If the representation is allowed, the appellant should be considered for promotion retrospectively, and if promoted, he should receive the benefit of higher pension and arrears of pay with 8% per annum interest. The court underscored that the principles of natural justice and Article 14 of the Constitution require the communication of all ACR entries to the concerned employee.