Abhijit Ghosh Dastidar vs Union Of India & Ors

(From the judgement and order dated 27/07/2004 in WP No. 9723/2003 of The HIGH COURT OF BOMBAY)

ABHIJIT GHOSH DASTIDAR Petitioner(s)

VERSUS

UNION OF INDIA & ORS. Respondent(s)

(With appln(s) for c/delay in filing counter affidavit, and prayer for interim relief)

Date: 22/10/2008 This Petition was called on for hearing today.

CORAM : HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE P. SATHASIVAM HON'BLE MR. JUSTICE J.M. PANCHAL

For Petitioner(s) Mr. Sanjay Parekh, Adv. Mr. Jitin Sahni, Adv. Mr. A.N. Singh, Adv. Mr. Gaurav Tyagi, Adv. M/s. M. Saxena, Adv. Ms. Anitha Shenoy,Adv.

For Respondent(s) Mr. Ashok Bhan, Adv. Mrs. Varuna Bhandari Gugnani, Adv. Mr. B.K. Prasad, Adv. For Mr. V.K. Verma,Adv.

UPON hearing counsel the Court made the following ORDER

Leave granted.

The appeal is allowed in terms of the signed order.

No costs.

(R.K.DHAWAN) (VEERA VERMA) COURT MASTER COURT MASTER

(Signed order is placed on the file)

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.6227 OF 2008 ( Arising out of S.L.P. (C) NO. 26556 OF 2004 )

Abhijit Ghosh Dastidar .... Appellant

Versus

Union of India & Ors. .... Respondent(s)

ORDER

1) Leave granted.

2) The appellant was Post Master General during the relevant period and was

eligible to be promoted to the Higher Administrative Grade of Indian Postal Service

Group-A and to be posted as Chief Post Master General. His claim for promotion

was considered by the D.P.C. on 15.12.1999 and again on 28.02.2001. The appellant

was not found eligible for promotion to the Higher Administrative Grade-A. He filed

an Original Application before the Central Administrative Tribunal (hereinafter

referred to as "CAT")at Patna alleging that he was not considered for promotion for

the reason that there were two entries in his C.R. i.e. one on 22.09.1997 and another

on 08.02.1998. It was pointed out that the CAT, Patna Bench by order dated

27.05.2002 directed the authority not to take note of "the order of caution -2-

dated 22.09.1997" and "the order of adverse remarks dated 09.06.1998" for the

period 01.04.1997 to 13.10.1997 while considering the appellant for promotion. In the

light of the said order, the appellant contended that these two adverse entries should

not have been considered by the D.P.C. He further contended that through out the

period he was given entry of "good". The respondent-Department alleged that the

appellant was not considered for promotion as he was not having the benchmark of

"very good". According to the appellant, the adverse entries namely "good" were not

communicated. The said aspect ought not to have been considered while considering

his promotion. In support of the above claim, he relied on the decision of this Court

in Dev Dutt vs. Union of India & Ors., 2008 (7) Scale 403.

3) Pursuant to the direction of the CAT, Patna Bench on 09.09.2002 review of

D.P.C. was held and the appellant was not found suitable for promotion. In March,

2003, there was a regular D.P.C. and the appellant was found fit for promotion with

the same entries and accordingly promoted to Higher Administrative Grade Group-A

and later retired from service.

4) It is not in dispute that the CAT, Patna Bench passed an order recommending

the authority not to rely on the order of caution dated 22.09.1997 and the order of

adverse remarks dated 09.06.1998. In view of the said order, one obstacle

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relating to his promotion goes. 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

ACR 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 for promotion or get 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 above referred decision 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 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.

5) Learned counsel appearing for the appellant has pointed out that the officer

who was immediately junior in service to the appellant was given promotion on

28.08.2000. Therefore, the appellant also be deemed to have been given promotion

from 28.08.2000. Since the appellant had retired from service, we make it clear that

he is not entitled to any pay or allowances for the period for which he had not

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worked in the Higher Administrative Grade Group-A, but his retrospective

promotion from 28.08.2000 shall be considered for the benefit of re-fixation of his

pension and other retrial benefits as per rules.

6) The appeal is allowed to the above extent. No costs.

......................................CJI.

(K.G. BALAKRISHNAN)

..............................................J. (P. SATHASIVAM) .............................................J. (J.M. PANCHAL)

NEW DELHI;

OCTOBER 22, 2008.