Pankaj Prakash vs United India Insurance Co.Ltd.

Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal Nos 5340-5341 of 2019 (Arising out of SLP(C) Nos 33462-33463 of 2018)

Pankaj Prakash .... Appellant(s)

Versus

United India Insurance Co Ltd & Anr ....Respondent(s)

JUDGMENT

Dr Dhananjaya Y Chandrachud, J

1 Leave granted.

2 The dispute in the present case arises from the appellant’s claim for

promotion from Scale III to Scale IV in the services of the respondents.

The year of promotion is 2014-2015.

3 The grievance of the appellant is that the entries in his Annual

Performance Appraisal Report1 for 2010-11 and 2011-12 were not

disclosed, as a result of which he was unable to submit a representation at

the material time. The appellant had the following gradings in the APARs:

(i) 2010-2011 “C”

Signature Not Verified (ii) 2011-2012 “B” Digitally signed by SANJAY KUMAR

(iii) 2012-2013 “A” Date: 2019.07.13 13:24:58 IST Reason:

(iv) 2013-2014 “A”

1 “APAR” 2

4 Relying on the two-judge Bench decision of this Court in Dev Dutt v

Union of India2 and the subsequent decision of the three-judge Bench in

Sukhdev Singh v Union of India3, the appellant contended that the failure

to communicate the entries for 2010-11 and 2011-12 is contrary to the law

laid down by this Court. Moreover, it has been submitted that on 14 May

2009 and 13 April 2010, the Union of India in the Ministry of Personnel,

Public Grievances and Pensions (Department of Personnel and Training)

had issued directions for implementation of the decision in Dev Dutt

(supra). Thereafter, on 19 October 2012, the Union of India in the Ministry

of Finance (Department of Financial Services) had drawn the attention of

public sector insurance companies to the earlier Office Memorandum

dated 14 May 2009 seeking immediate compliance. In this background, it

has been submitted that the High Court of Judicature at Allahabad, which

was moved by the appellant in proceedings under Article 226, was in error

in coming to the conclusion that absent an adverse entry or an entry below

the benchmark, the failure to communicate did not result in an actionable

grievance. The High Court dismissed the writ petition by its judgment

dated 6 October 2016 as well as the review petition by its judgment dated

17 January 2017. The present proceedings were instituted assailing the

judgments of the High Court.

5 In the counter affidavit filed on behalf of the respondent, it has been

stated that following a circular dated 18 March 2014, all public sector

2 (2008) 8 SCC 725 3 (2013) 9 SCC 566 3

insurance companies have disclosed APARs since appraisal year 2013-14.

It has been submitted that in consequence, there was no necessity to

disclose the APARs to the appellant for the relevant years (2010-11 and

2011-12).

6 Adopting the line of submission which has been set out in the counter

affidavit, Mr P P Malhotra, learned senior counsel appearing on behalf of

the respondents, submitted that in terms of the Promotion Policy for

Officers – 20064, promotions from Scale III to Scale IV are based on (i) a

written test; (ii) the work record; and (iii) seniority. It was submitted that in

the present case the appellant failed to fulfill the cut-off for promotion of

68.98 marks, as disclosed to him on 9 September 2014.

7 Dr. Manish Singhvi, learned senior counsel appearing on behalf of the

appellant, submitted that the defence which has been set out on behalf of

the respondent has no substance since, following the law laid down by this

Court in Dev Dutt (supra), all entries in the APARs are required to be

communicated. Non-communication of the entries, in the present case, is

a matter of prejudice since the communication dated 9 September 2014

indicates that, in appraising his work record, the appellant was given 40.15

marks out of a maximum of 45. This indicates that the uncommunicated

entries for 2010-11 and 2011-12 have weighed against him.

8 While assessing the rival submissions, we must, at the outset, note

that the law laid down by the two-judge Bench of this court in Dev Dutt

(supra) has been reaffirmed by three judges in Sukhdev Singh (supra). 4 Annexure P-1 4

In Sukhdev Singh (supra), this Court held:

“8. In our opinion, the view taken in Dev Dutt [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.”

9 The Union of India had also issued Office Memoranda on 14 May

2009 and 13 April 2010 seeking compliance by all Ministries and

Departments. Moreover, on 19 October 2012, a specific communication

was also addressed to public sector insurance companies. Even

independent of these communications, the respondent was duty bound to

comply with the law laid down by this Court. They cannot urge that the

decision having been implemented from 2013-14, it has no application for

the earlier years. The judgment of this Court is declaratory in nature.

10 Learned senior counsel appearing on behalf of the respondent, while

placing reliance on the disclosure made to the appellant on 9 September

2014, submitted that even if a communication were to be made, no

difference would result in the ultimate outcome. Mr. Malhotra urged that

the promotion for 2014-15 depended on the APARs for 2011-12, 2012-13

and 2013-14.

5

11 The relevant part of the communication dated 9 September 2014

provides thus:

“1. The marks secured by you in the Promotion Exercise 2014-15 is as under:

Normal Channel Fast Track Written Test 20.1 26.81 Work Record (WR) 40.15 35.69 Seniority 4.2 N/A Interview N/A 16 Total 64.45 78.5

2. The cut-off marks for promotion (Scale III to IV) is as under:

Normal Channel 68.98 Fast Track 84.14”

12 The above communication indicates that for the normal channel, with

which we are concerned, the appellant secured 64.45 marks against the

cut-off of 68.98 for promotion from Scale III to Scale IV.

13 Admittedly, for one of the years under consideration (2011-12) for the

promotional exercise for 2014-15, the appellant was graded a “B”, while for

the subsequent two years, he was graded an “A”. Consequently, the fact

that the appellant was given a lower grading for 2011-12 would materially

affect whether or not he should be promoted from Scale III to Scale IV for

the year in question. The non-communication of the entries is, therefore, a

matter in respect of which a legitimate grievance can be made by the

appellant, particularly having regard to the position in law laid down in Dev

Dutt (supra) and Sukhdev Singh (supra).

14 The next question to consider is the substantive relief which should

be granted to the appellant. The promotional exercise of 2014-15 has

been completed. The appellant has since been promoted in 2018. The 6

ends of justice would be made if a direction is issued to the respondent to

consider the representation, if any, that may be submitted by the appellant

in respect of the grading which was assigned to him for the relevant years

which were taken into consideration during the promotional exercise for

2014-15.

15 We issue the following directions:

(i) Within a period of one month from the date of receipt of a certified

copy of this order, the respondent shall communicate to the appellant

the uncommunicated entries in the APARs for the years which were

taken into account for the promotional exercise of 2014-15;

(ii) Within a period of two months from the date of receipt of the above, it

would be open to the appellant to submit his objections and

representation to the respondent;

(iii) The representation shall be considered within a period of three

months from the date of receipt of the representation;

(iv) Thereafter, based on the result of the decision, the competent

authority shall take a decision on whether any modification in the

decision for promotion from Scale III to Scale IV for 2014-15 in

respect of the appellant is warranted; and

(v) In order to ensure that this exercise is carried out fairly, we direct that

the competent authority shall ensure that the representation that is

submitted by the appellant is placed before an authority at a

sufficiently senior level to obviate any bias or injustice. 7

16 The impugned judgments and orders of the High Court are set aside.

The appeals are allowed in the above terms. There shall be no order as to

costs.

…………...…...….......………………........J. [Dr Dhananjaya Y Chandrachud]

…..…..…....…........……………….…........J. [Indira Banerjee]

New Delhi;

July 10, 2019 8

ITEM NO.5 COURT NO.11 SECTION XI

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Civil Appeal Nos 5340-5341 of 2019

(Arising out of SLP(C) Nos 33462-33463 of 2018)

Pankaj Prakash .... Appellant(s)

Versus

United India Insurance Co Ltd & Anr ....Respondent(s)

(WITH I.R. IA No.175508/2018-PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES)

WITH Diary No(s). 42691/2018 (XI) (WITH I.R. and IA No.70260/2019-CONDONATION OF DELAY IN FILING and IA No.70266/2019-CONDONATION OF DELAY IN REFILING)

Date : 10-07-2019 These matters were called on for hearing today.

CORAM :

HON'BLE DR. JUSTICE D.Y. CHANDRACHUD HON'BLE MS. JUSTICE INDIRA BANERJEE

For Petitioner(s) Dr. Manish Singhvi, Sr. Adv.

Mr. Romil Pathak, Adv.

Mr. Shailja Nanda Mishra, Adv.

Mr. Ashwani Bhardwaj, AOR

For Respondent(s) Mr. P.P. Malhotra, Sr. Adv.

Mr. Vineet Malhotra, Adv.

Mr. Mohit Paul, AOR Mr. Yasir Rauf, Adv.

Mr. Shubhendu Kaushik, Adv.

Ms. Sunaina Paul, Adv.

9

UPON hearing the counsel the Court made the following O R D E R

Civil Appeal Nos 5340-5341 of 2019 (Arising out of SLP(C) Nos 33462-33463 of 2018)

Leave granted.

The appeals are allowed in terms of the signed

reportable judgment. There shall be no order as to costs.

Pending application, if any, stands disposed of.

Diary No(s). 42691/2018

Delay condoned.

Issue notice, returnable in twelve weeks.

Dasti, in addition, is permitted.

Counter affidavit be filed in the meantime.

(SANJAY KUMAR-I) (SAROJ KUMARI GAUR) AR-CUM-PS COURT MASTER

(Signed reportable judgment is placed on the file)