Dev Dutt Vs.
of India & Ors.  INSC 885 (12 May 2008)
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7631 OF 2002 Dev Dutt ..
Appellant -vs- Union of India & Ors. ..
Markandey Katju, J.
1. This appeal by special leave
has been filed against the impugned judgment of the Gauhati High Court dated
26.11.2001 in Writ Appeal No.
447 of 2001. By the aforesaid
judgment the Division Bench of the Gauhati High Court dismissed the Writ Appeal
of the appellant filed against the judgment of the Learned Single Judge dated
2. Heard learned counsel for the
parties and perused the record.
3. The appellant was in the
service of the Border Roads Engineering Service which is governed by the Border
Roads Engineering Service Group 'A' Rules, as amended. As per these rules,
since the appellant was promoted as Executive Engineer on 22.2.1988, he was
eligible to be considered for promotion to the post of Superintending Engineer
on completion of 5 years on the grade of Executive Engineer, which he completed
Accordingly the name of the
appellant was included in the list of candidates eligible for promotion.
4. The Departmental Promotion
Committee (DPC) held its meeting on 16.12.1994. In that meeting the appellant
was not held to be eligible for promotion, but his juniors were selected and
promoted to the rank of Superintending Engineer. Hence the appellant filed a
Writ Petition before 3 the Gauhati High Court which was dismissed and his
appeal before the Division Bench also failed. Aggrieved, this appeal has been
filed by special leave before this Court.
5. The stand of the respondent was
that according to para 6.3(ii) of the guidelines for promotion of departmental
candidates which was issued by the Government of India, Ministry of Public
Grievances and Pension, vide Office Memorandum dated 10.4.1989, for promotion
to all posts which are in the pay scale of Rs.3700-5000/- and above, the bench
mark grade should be 'very good' for the last five years before the D.P.C.. In
other words, only those candidates who had 'very good' entries in their Annual
Confidential Reports (ACRs) for the last five years would be considered for
The post of Superintending
Engineer carries the pay scale of Rs.3700- 5000/- and since the appellant did
not have 'very good' entry but only 'good' entry for the year 1993-94, he was
not considered for promotion to the post of Superintending Engineer.
6. The grievance of the appellant
was that he was not communicated the 'good' entry for the year 1993-94. He
submitted that had he been communicated that entry he would have had an
opportunity of making a 4 representation for upgrading that entry from 'good'
to 'very good', and if that representation was allowed he would have also
become eligible for promotion. Hence he submits that the rules of natural
justice have been violated.
7. In reply, learned counsel for
the respondent submitted that a 'good' entry is not an adverse entry and it is
only an adverse entry which has to be communicated to an employee. Hence he
submitted that there was no illegality in not communicating the 'good' entry to
8. Learned counsel for the
respondent relied on a decision of this Court in Vijay Kumar vs. State of
Maharashtra & Ors. 1988 (Supp) SCC 674 in which it was held that an
un-communicated adverse report should not form the foundation to deny the
benefits to a government servant when similar benefits are extended to his
juniors. He also relied upon a decision of this Court in State of Gujarat &
Anr. vs. Suryakant Chunilal Shah 1999 (1) SCC 529 in which it was held:
"Purpose of adverse entries
is primarily to forewarn the government servant to mend his ways and to improve
his performance. That is why, it is required to communicate the adverse entries
so that the government servant to whom the adverse entry is given, may have
either opportunity to explain his conduct so as to show that the 5 adverse
entry was wholly uncalled for, or to silently brood over the matter and on
being convinced that his previous conduct justified such an entry, to improve
On the strength of the above
decisions learned counsel for the respondent submitted that only an adverse
entry needs to be communicated to an employee.
9. We do not agree. In our opinion
every entry must be communicated to the employee concerned, so that he may have
an opportunity of making a representation against it if he is aggrieved.
10. In the present case the bench
mark (i.e. the essential requirement) laid down by the authorities for
promotion to the post of Superintending Engineer was that the candidate should
have 'very good' entry for the last five years. Thus in this situation the
'good' entry in fact is an adverse entry because it eliminates the candidate from
being considered for promotion.
Thus, nomenclature is not
relevant, it is the effect which the entry is having which determines whether
it is an adverse entry or not. It is thus the rigours of the entry which is
important, not the phraseology. The grant of a `good' 6 entry is of no
satisfaction to the incumbent if it in fact makes him ineligible for promotion
or has an adverse effect on his chances.
11. Hence, in our opinion, the
'good' entry should have been communicated to the appellant so as to enable him
to make a representation praying that the said entry for the year 1993-94
should be upgraded from 'good' to 'very good'. Of course, after considering
such a representation it was open to the authority concerned to reject the
representation and confirm the 'good' entry (though of course in a fair
manner), but at least an opportunity of making such a representation should
have been given to the appellant, and that would only have been possible had
the appellant been communicated the 'good' entry, which was not done in this
case. Hence, we are of the opinion that the non-communication of the 'good'
entry was arbitrary and hence illegal, and the decisions relied upon by the
learned counsel for the respondent are distinguishable.
12. Learned counsel for the
respondent submitted that under the Office Memorandum 21011/4/87 [Estt.'A']
issued by the Ministry of Personnel/Public Grievance and Pensions dated
10/11.09.1987, only an adverse entry is to be communicated to the concerned
employee. It is well settled that no rule or government instruction can violate
Article 14 or any 7 other provision of the Constitution, as the Constitution is
the highest law of the land. The aforesaid Office Memorandum, if it is
interpreted to mean that only adverse entries are to be communicated to the
concerned employee and not other entries, would in our opinion become arbitrary
and hence illegal being violative of Article 14. 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.
13. It has been held in Maneka
Gandhi vs. Union of India & Anr. AIR 1978 SC 597 that arbitrariness
violates Article 14 of the Constitution. In our opinion, the non-communication
of an entry in the A.C.R. of a public servant is arbitrary because it deprives
the concerned employee from making a representation against it and praying for
its up-gradation. In our opinion, every entry in the Annual Confidential Report
of every employee under the State, whether he is in civil, judicial, police or
other service (except the military) must be communicated to him, so as to
enable him to make a representation against it, because non-communication
deprives the employee of the opportunity of making a representation against it
which may affect his chances of being promoted (or get some other benefits).
8 Moreover, the object of writing
the confidential report and making entries in them is to give an opportunity to
a public servant to improve his performance, vide State of U.P. vs. Yamuna
Shankar Misra 1997 (4) SCC
7. Hence such non-communication
is, in our opinion, arbitrary and hence violative of Article 14 of the
14. 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 bench mark or not. Even
if there is no bench mark, 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 than a person having a `very good' or
15. In most services there is a gradation
of entries, which is usually as follows:
(i) Outstanding 9 (ii) Very Good
(iii) Good (iv) Average (v) Fair (vi) Poor A person getting any of the entries
at items (ii) to (vi) should be communicated the entry so that he has an
opportunity of making a representation praying for its upgradation, and such a
representation must be decided fairly and within a reasonable period by the
16. If we hold that only `poor'
entry is to be communicated, the consequences may be that persons getting
`fair', `average', `good' or `very good' entries will not be able to represent
for its upgradation, and this may subsequently adversely affect their chances
of promotion (or get some other benefit).
17. In our opinion if the Office
Memorandum dated 10/11.09.1987, is interpreted to mean that only adverse
entries (i.e. `poor' entry) need to be communicated and not `fair', 'average'
or 'good' entries, it would become arbitrary (and hence illegal) since it may
adversely affect the incumbent's chances of promotion, or get some other
18. For example, if the bench mark
is that an incumbent must have `very good' entries in the last five years, then
if he has `very good' (or even `outstanding') entries for four years, a `good'
entry for only one year may yet make him ineligible for promotion. This `good'
entry may be due to the personal pique of his superior, or because the superior
asked him to do something wrong which the incumbent refused, or because the
incumbent refused to do sycophancy of his superior, or because of caste or
communal prejudice, or for some other extraneous consideration.
19. In our opinion, every entry in
the A.C.R. 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 11 Gandhi
vs. Union of India (supra) that arbitrariness violates Article 14 of the
20. Thus it is not only when there
is a bench mark 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.
21. Learned counsel for the
respondent has relied on the decision of this Court in U. P. Jal Nigam vs.
Prabhat Chandra Jain AIR 1996 SC 1661.
We have perused the said decision,
which is cryptic and does not go into details. Moreover it has not noticed the
Constitution Bench decision of this Court in Maneka Gandhi vs. Union of India
(supra) which has held that all State action must be non-arbitrary, otherwise
Article 14 of the Constitution will be violated. In our opinion the decision in
U.P. Jal Nigam (supra) cannot be said to have laid down any legal principle
that entries need not be communicated. As observed in Bharat Petroleum
Corporation Ltd. vs. N.R. Vairamani AIR 2004 SC 4778 (vide para 9):
12 "Observations of Courts
are neither to be read as Euclid's Theorems nor as provisions of the statute,
and that too, taken out of their context".
22. In U.P. Jal Nigam's case
(supra) there is only a stray observation "if the graded entry is of going
a step down, like falling from 'very good' to 'good' that may not ordinarily be
an adverse entry since both are a positive grading". There is no
discussion about the question whether such 'good' grading can also have serious
adverse consequences as it may virtually eliminate the chances of promotion of
the incumbent if there is a benchmark requiring 'very good' entry. And even
when there is no benchmark, such downgrading can have serious adverse effect on
an incumbent's chances of promotion where comparative merit of several
candidates is considered.
23. Learned counsel for the
respondent also relied upon the decision of this Court in Union of India &
Anr. vs. S. K. Goel & Ors. AIR 2007 SC 1199 and on the strength of the same
submitted that only an adverse entry need be communicated to the incumbent. The
aforesaid decision is a 2- Judge Bench decision and hence cannot prevail over
the 7-Judge Constitution Bench decision of this Court in Maneka Gandhi vs.
Union of India (supra) in which it has been held that arbitrariness violates
Article 14 13 of the Constitution. Since the aforesaid decision in Union of
India vs. S.K.
Goel (supra) has not considered
the aforesaid Constitution Bench decision in Maneka Gandhi's case (supra), it
cannot be said to have laid down the correct law. Moreover, this decision also
cannot be treated as a Euclid's formula since there is no detailed discussion
in it about the adverse consequences of non-communication of the entry, and the
consequential denial of making a representation against it.
24. 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
25. In the present case, the
action of the respondents in not communicating the 'good' entry for the year
1993-94 to the appellant is in 14 our opinion arbitrary and violative of
natural justice, because in substance the `good' entry operates as an adverse
entry (for the reason given above).
26. What is natural justice? The
rules of natural justice are not codified nor are they unvarying in all
situations, rather they are flexible. They may, however, be summarized in one
word : fairness. In other words, what they require is fairness by the authority
concerned. Of course, what is fair would depend on the situation and the
27. Lord Esher M.R. in Voinet vs.
Barrett (1885) 55 L.J. QB 39, 39 observed: "Natural justice is the natural
sense of what is right and wrong."
28. In our opinion, our natural
sense of what is right and wrong tells us that it was wrong on the part of the
respondent in not communicating the 'good' entry to the appellant since he was
thereby deprived of the right to make a representation against it, which if
allowed would have entitled him to be considered for promotion to the post of
Superintending Engineer. One may not have the right to promotion, but one has
the right to be considered for promotion, and this right of the appellant was
violated in the present case.
29. A large number of decisions of
this Court have discussed the principles of natural justice and it is not
necessary for us to go into all of them here. However, we may consider a few.
30. Thus, in A. K. Kraipak &
Ors. vs. Union of India & Ors. AIR 1970 SC 150, a Constitution Bench of
this Court held :
"The concept of natural
justice has undergone a great deal of change in recent years. In the past it
was thought that it included just two rules, namely (1) no one shall be a judge
in his own cause (Nemo debet csse judex propria causa), and (2) no decision
shall be given against a party without affording him a reasonable hearing (audi
alteram partem). Very soon thereafter a third rule was envisaged and that is
that quasi-judicial enquiries must be held in good faith, without bias and not
arbitrarily or unreasonably. But in the course of years many more subsidiary
rules came to be added to the rules of natural justice".
31. The aforesaid decision was
followed by this Court in K. I. Shephard & Ors. vs. Union of India &
Ors. AIR 1988 SC 686 (vide paras 12-15). It was held in this decision that even
administrative acts have to be in accordance with natural justice if they have
civil consequences. It was also held that natural justice has various facets
and acting fairly is one of them.
32. In Kumaon Mandal Vikas Nigam
Ltd. vs. Girja Shankar Pant AIR 2001 SC 24, this Court held (vide para 2):
The doctrine (natural justice) is
now termed as a synonym of fairness in the concept of justice and stands as the
most accepted methodology of a governmental action".
33. In the same decision it was
also held following the decision of Tucker, LJ in Russell vs. Duke of Norfolk
(1949) 1 All ER 109:
"The requirement of natural
justice must depend on the circumstances of the case, the nature of the
enquiry, the rules under which the tribunal is acting, the subject- matter that
is being dealt with, and so forth".
34. In Union of India etc. vs.
Tulsiram Patel etc. AIR 1985 SC 1416 (vide para 97) a Constitution Bench of
this Court referred to with approval the following observations of Ormond, L.J.
in Norwest Holst Ltd. vs.
Secretary of State for Trade
(1978) 1, Ch. 201 :
"The House of Lords and this
court have repeatedly emphasized that the ordinary principles of natural
justice must be kept flexible and must be adapted to the circumstances
prevailing in any particular case".
(emphasis supplied) 17 Thus, it is
well settled that the rules of natural justice are flexible. The question to be
asked in every case to determine whether the rules of natural justice have been
violated is : have the authorities acted fairly?
35. In Swadesh Cotton Mills etc.
vs. Union of India etc. AIR 1981 SC 818, this Court following the decision in
Mohinder Singh Gill & Anr. vs.
The Chief Election Commissioner
& Ors. AIR 1978 SC 851 held that the soul of the rule (natural justice) is
fair play in action.
36. In our opinion, fair play
required that the respondent should have communicated the 'good' entry of
1993-94 to the appellant so that he could have an opportunity of making a
representation praying for upgrading the same so that he could be eligible for promotion.
Non-communication of the said entry, in our opinion, was hence unfair on the
part of the respondent and hence violative of natural justice.
37. Originally there were said to
be only two principles of natural justice :
(1) the rule against bias and (2)
the right to be heard (audi alteram partem).
However, subsequently, as noted in
A.K. Kraipak's case (supra) and K.L.
Shephard's case (supra), some more
rules came to be added to the rules of 18 natural justice, e.g. the requirement
to give reasons vide S.N. Mukherji vs.
Union of India AIR 1990 SC 1984.
In Maneka Gandhi vs. Union of India (supra) (vide paragraphs 56 to 61) it was
held that natural justice is part of Article 14 of the Constitution.
38. Thus natural justice has an
expanding content and is not stagnant. It is therefore open to the Court to
develop new principles of natural justice in appropriate cases.
39. 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 19 the Constitution in our opinion requires such communication.
Article 14 will override all rules or government orders.
40. 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 concerned authority, and the concerned
authority 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
41. We, however, make it clear
that the above directions will not apply to military officers because the
position for them is different as clarified by this Court in Union of India vs.
Major Bahadur Singh 2006 (1) SCC 368.
But they will apply to employees
of statutory authorities, public sector 20 corporations and other
instrumentalities of the State (in addition to Government servants).
42. In Canara Bank vs. V. K.
Awasthy 2005 (6) SCC 321, this Court held that the concept of natural justice
has undergone a great deal of change in recent years. As observed in para 8 of
the said judgment:
"Natural justice is another
name for common-sense justice. Rules of natural justice are not codified
But they are principles ingrained
into the conscience of man. Natural justice is the administration of justice in
a common-sense liberal way. Justice is based substantially on natural ideals
and human values".
43. In para 12 of the said
judgment it was observed:
"What is meant by the term
"principles of natural justice"
is not easy to determine. Lord
Summer (then Hamilton, L.J.) in R. v. Local Govt. Board (1914) 1 KB 160:83 LJKB
86 described the phrase as sadly lacking in precision. In General Council of
Medical Education &
Registration of U.K. v. Spackman
(1943) AC 627:
(1943) 2 All ER 337, Lord Wright
observed that it was not desirable to attempt "to force it into any
44. In State of Maharashtra vs.
Public Concern for Governance Trust & Ors. 2007 (3) SCC 587, it was
observed (vide para 39):
"In our opinion, when an
authority takes a decision which may have civil consequences and affects the
rights 21 of a person, the principles of natural justice would at once come
45. 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.
46. In view of the above, we are
of the opinion that both the learned Single Judge as well as the learned
Division Bench erred in law. Hence, we set aside the judgment of the Learned
Single Judge as well as the impugned judgment of the learned Division Bench.
47. We are informed that the
appellant has already retired from service.
However, if his representation for
upgradation of the `good' entry is allowed, he may benefit in his pension and
get some arrears. Hence we direct that the 'good' entry of 1993-94 be
communicated to the appellant forthwith and he should be permitted to make a
representation against the same praying for its upgradation. If the upgradation
is allowed, the 22 appellant should be considered forthwith for promotion as
Superintending Engineer retrospectively and if he is promoted he will get the
benefit of higher pension and the balance of arrears of pay along with 8% per
48. We, therefore, direct that the
'good' entry be communicated to the appellant within a period of two months
from the date of receipt of the copy of this judgment. On being communicated,
the appellant may make the representation, if he so chooses, against the said
entry within two months thereafter and the said representation will be decided
within two months thereafter. If his entry is upgraded the appellant shall be
considered for promotion retrospectively by the Departmental Promotion Committee
(DPC) within three months thereafter and if the appellant gets selected for
promotion retrospectively, he should be given higher pension with arrears of
pay and interest @ 8% per annum till the date of payment.
49. With these observations this
appeal is allowed. No costs.
(H. K. Sema)
(Markandey Katju) 23 New Delhi;