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Cites 11 docs - [View All]
Dev Dutt vs Union Of India & Ors on 12 May, 2008
Abhijit Ghosh Dastidar vs Union Of India & Ors on 22 October, 2008
Sukhdev Singh vs Union Of India & Ors on 23 April, 2013
Union Of India & Anr vs S.K. Goel & Ors on 12 February, 2007
K.M.Mishra vs Central Bank Of India & Ors on 16 September, 2008

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Madras High Court
K.Muthuraj vs Indian Overseas Bank on 28 January, 2014

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 28.01.2014

CORAM

THE HONOURABLE Mr. JUSTICE M. VENUGOPAL

W.P.No.19618 of 2012

&

M.P.No.3 of 2012 & M.P.No.1 of 2013

1.K.Muthuraj

2.G.Srinivasan

3.G.Kannan

4.V.Ka.Selvarajan

5.K.Prabakaran ... Petitioners

Vs

1. Indian Overseas Bank,

Rep. by its Chairman and Director,

Central Office, 763, Anna Salai,

Chennai-600 002.

2. Union of India, rep. by

its Secretary,

Department of Ministry of Finance,

New Delhi.

3. The Secretary,

Department of Public Enterprises,

Union of India,

New Delhi. ... Respondents

PRAYER: Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Certiorarified Mandamus calling for the records of the First Respondent-Bank in connection with its promotion policy for officers 2012 is concerned and quash the same in so far as the impugned policy requires a minimum of 75% marks in APAR for each of the three years required for eligibility for the officers in SMG Scale IV for promotion to SMG Scale V is concerned and direct the Respondent Bank not to implement the said promotion policy based on APAR marks awarded without following the law laid down by the Hon'ble Supreme Court of India in Dev Dutt v. Union of India and Others and reiterated in Abhijit Ghosh Dastidar v. Union of India and Others, (2009) 16 SCC 146 and enunciated in the circular of the Third Respondent in Ref. No.5(1)/2000-GM, Office Memorandum dated 28.05.2009. For Petitioners : Mr.V.Prakash, Senior Counsel for

M/s.K.Sudalaikannu

For Respondents : Mr.Karthick for

M/s.T.S.Gopalan & Co., for R1

Ms.M.Christella CGSC for R2&R3

O R D E R

The Petitioners have preferred the instant Writ of Certiorarified Mandamus calling for the records of the the First Respondent/Indian Overseas Bank, Central Office, 763, Anna Salai, Chennai-600 002, in connection with its promotion policy for officers 2012 is concerned and to quash the same in so far as the impugned policy requires a minimum of 75% marks in APAR for each of the three years required for eligibility for the officers in SMG Scale IV for promotion to SMG Scale V is concerned. Further, they have sought for passing of an order by this Court in directing the First Respondent-Bank not to implement the said promotion policy based on APAR marks awarded without adhering the law laid down by the Hon'ble Supreme Court of India in Dev Dutt v. Union of India, (2008) 8 Supreme Court Cases 725 and Others and reiterated in Abhijit Ghosh Dastidar v. Union of India and Others, (2009) 16 SCC 146 and enunciated in the circular of the Third Respondent in Ref. No.5(1)/2000-GM, Office Memorandum dated 28.05.2009.

2.The Summary of Writ Facts:

(i) The First Petitioner joined the service of the First Respondent/Indian Overseas Bank in the year 1980 as Clerk and promoted as Junior Management I in the year 1981 and further promoted as M.M.II in the year 2001 and reached SMG Scale-IV since 2008. Further, the Second Petitioner joined the service of the First Respondent-Bank during the year 1976 as Clerk and promoted as Junior Management-I in the year 1981 and further promoted as Middle Management-II and reached SMG Scale IV since 2007. The Third Petitioner joined the service of the First Respondent-Bank during the year 1976 as Clerk and promoted as Junior Management-I in the year 1982 and further promoted as MM-II and reached SMG Scale-IV since 2008.

(ii)It comes to be known that the Fourth Petitioner joined the service of the First Respondent-Bank in the year 1982 as J.M.-I Officer and promoted as J.M.-II in the year 1994 and further promoted as M.M.-III in the year 2002 and reached SMG Scale-IV on 2008. The Fifth Petitioner joined the service of the First Respondent-Bank in the year 1971 as Clerk and promoted as J.M.-I in the year 1978 and further promoted as J.M.-II in the year 1987 and reached SMG Scale-IV since 2008.

(iii)According to the Petitioners, for promotion from SMG Scale -IV to SMG Scale-V, an Officer should have completed a minimum of 3 years of service in SMG Scale IV and all of them have the said qualification. Also that, they have completed the minimum requirement of 12 years of service as officers and satisfied the further requirement of at least 3 years service of as 'Branch Head'. They have already passed the Computer Literacy and Knowledge Test. They were expecting that they would be called for interview for SMG Scale-V. As a matter of fact, they were so called for the selection during the year 2011. Others were called for interview for the year 2012. But the Petitioners were not called for the interview and they were informed now, that too, not in writing that they do not have 75 marks in APAR for the three years viz., 2009, 2010 and 2011. They were not informed what marks were awarded to them in APAR for the aforesaid three years.

(iv)The stand of the Petitioners is that the First Respondent/Indian Overseas Bank is maintaining the policy of non-disclosure and confidentiality as regards the marks awarded in APAR, with the result, they were completely kept in dark as to their performance appraisal for the aforesaid three years.

(v)The First Respondent-Bank is a Nationalised Bank and carrying on the public duty of banking and therefore, it is an instrumentality of Government of India and is an 'Authority' within the meaning of Article 12 of the Constitution of India. The impugned promotion policy is the policy envisaged by the Government of India and all the Nationalised Banks and the policies of the Banks are governed by the directives of the Department of Public Enterprises of Government of India/Third Respondent.

3.The Gist of Counter of the First Respondent/Bank:

(i) The First Respondent/Nationalised Bank came into existence in terms of the provisions of the Banking Companies [Acquisition and Transfer of Undertakings] Act, 1970. Section 19 of the said Act empowers the Board of Directors of the Bank after consultation with the Reserve Bank and with the previous sanction of the Central Government by notification in the Official Gazette to make Regulations. Sub Section 2 enjoins the subjects on which such Regulations can be framed. Item (3) relates to duties and conduct of advisors, officers or other employees of the Bank. Item (f) is concerned with the establishment and maintenance of superannuation, pension, provident fund or other funds for the benefit of the officers or other employees and the granting of superannuation allowances, annuities and pensions payable out of such funds. (ii)As per the ingredients of Section 19 of the Act, the First Respondent-Bank has framed the Service Regulations called Indian Overseas Bank Officers' Service Regulation. Service Regulation 17 speaks of (i) promotions to all Grades of Officers in the bank shall be made in accordance with the policy laid down by the Board, from time to time, having regard to the guidelines of the Government, if any and (ii) for the avoidance of doubts, it is clarified that this Regulation shall also apply to promotions of any category of employees to the Junior Management Grade. The subject matter of the present Writ Petition relates to promotion of officers in SMG-IV to SMG-V. It is well settled that promotion is a managerial function except where Rules are framed laying down the terms and conditions of promotions. A chance for promotion is not a condition of service. Service Regulation 17 envisages formulation of promotion policy by the Board of Directors based on the guidelines issued by the Central Government from time to time. The First Respondent is advised to submit that such policy on promotion which is framed based on the guidelines of the Government of India is not subject to challenge. (iii)The category of Officers with the First Respondent are in Scale I to VII, the Scale I being lowest and the Scale VII being the highest. While officers in Scale I are Junior Management Grade, Scales II and III are in Middle Management Grade, Scale IV and V are in Senior Management Grade and Scale VI and VII are in Top Executive Grade. Above Scale VII are whole time Directors on the Board.

(iv) On 05.12.2011 and 14.03.2012, the Public Sector Banks were advised by the Government of India that it had laid down the promotion process to be followed by Public Sector Banks, that it was noticed over the years, many banks had deviated from its guidelines and had not only changed the eligibility in terms of experience, but also introduced numerous channels of promotion and that it had created a large number of anomalies across banks in their promotion process, which had created difficulties in addressing the issues of severe shortage of manpower at top management levels. After taking into account, the suggestions received from the Public Sector Banks, the Ministry of Finance, Government of India, in supersession of the earlier guidelines issued in this regard, laid down new guidelines for promotions, one of which is fixation of eligibility criteria for promotion, requiring a minimum appraisal marks as 75 marks for each of the eligible years. Securing 75 marks in Annual Performance Appraisal Report [Confidential Report] in each of the eligible years created a lot of resistance from the relevant constituency of Officers. Also all the Banks represented to the Ministry of Finance to relax this eligibility criteria. The Ministry of Finance, Government of India considered the request and permitted relaxation in APAR by stipulating that it shall be 60% marks in APAR for each of the eligible years, for Officers who are required to pass a written test conducted by the Institute of Banking Personnel Selection (IBPS) only according to law. The Bank reduced the APAR marks from 75% to 60% for promotion upto Scale III. In regard to Officers in Scale IV and above, no relaxation was permitted with respect to the minimum marks of 75% in APAR since promotion is effected based on the marks obtained in interview and not based on 'written test'.

(v)The Government of India after issuing instructions and guidelines on various subjects including formulation of promotion policy from time to time, had released the managerial autonomy to the banks by which they were permitted to have freedom of action in matters relating to promotion policies. The assessment of the performance of the Officers starts with self appraisal by the concerned Officer which will be scrutinised by his immediate superior, who, on application of various laid down parameters, would record his concurrence or difference, based on which the rating would be given. Then, the matter goes for review at the hands of the Reviewing Authority, who will interfere only in cases where the Reporting Officer had taken an adverse decision on an Officer and such adverse decision was ex facie unsustainable.

(vi)In terms of the appraisal system prevailing in the Bank, if an Officer gets less than 40% marks in the APAR in a year, then it is treated as adverse entry and the same will be communicated to the concerned Officer by the reporting Authority/reviewing Authority concerned. If an Officer has put in three years of service in the same grade so as to be eligible for promotion to the higher grade, then the said Officer would have necessarily secured more than 40% marks in the three years and therefore, there would be no occasion for him/her to face adverse entry which requires him/her to demand an opportunity to be heard.

(vii)The rating system has not in any manner been changed by the promotion policy introduced in the year 2012. The Officers, who were not eligible for promotion by virtue of their having secured less than 75% marks in the three years' APAR, cannot make a grievance for not having been given an opportunity, because it was only the application of the undisputed rating system in the immediately preceding three years and therefore, there was no need to give the Officer any opportunity to show that an opportunity was given, he/she would have proved himself/herself eligible for promotion.

(viii)Normally for promotion, vacancies are notified in the rate of 1:3 or 1:4 subject to availability of fresh candidates and Zone of consideration would only depend on the criteria prescribed in this regard. Further, the seniority alone does not have any place for promotion in these cases.

(ix)As per the appraisal system existing in the Bank, securing less than 40% marks in the APAR is treated as adverse. Also, if there are any remarks that the Officers' integrity and honesty is doubtful or his performance is bad or poor, such marks would be reported as adverse remarks, in which case, it is communicated to the officer and arrangements are made to counsel the members and officers. This position was in practice in the years 2009, 2010 and 2011, during which period, the promotions were made after the judgment of the Hon'ble Supreme Court in DEV DUTT case and some of the Petitioners had already appeared in such promotion processes without any objection to the said performance appraisal system. The system of appraisal were acquiesced to the Officers who had accepted the parameters in APARs. Had there been any adverse remarks earlier, they would have been debarred from the earlier promotion processes. However, they were included in the Zone of consideration, but they failed to get promotion.

(x)The 2012 promotion policy had stipulated minimum marks of 75% in the APAR as an eligibility criteria to participate in the promotion process for promotion from Scale IV to V. When certain parameters uniformly made applicable to all the candidates, there is no scope for arbitrariness as alleged by the Petitioners. The candidates who fall in the zone of consideration for promotion have no vested right to insist as to what criteria should be applied for promotion. Till the year 2011, the participation in the promotion process was available to all officers, who had completed the prescribed years of service and under the modified policy of 2012, the eligibility criteria that the candidate should have obtained 75% marks in APAR for each of the eligible years is also prescribed. The prescription of such eligibility criteria is a guideline decided by the Ministry of Finance, Government of India and no exception can be taken in this regard. An Interim Order dated 23.07.2012 has been passed by this Court in directing the First Respondent/Bank to keep the 5 posts in abeyance, pending disposal of the Writ Petition will act unfairly to those candidates who would have normally been entitled to promotion, in the merit list, in the absence of the court order. The Petitioners' contentions:

4.The Learned Senior Counsel appearing for the Petitioners urges before this Court that the First Respondent-Bank had not communicated the APAR marks for the years 2009, 2010 and 2011 and only when the call letters were given to the Petitioners for the purpose of attending the interview on 21.07.2012, the Petitioners came to know of the fact that they were not being permitted to take part in the selection process. That apart, the call letters were sent on 21.07.2012 for the interview to be held on 23, 24 and 25th of July 2012.

5.To lend support to the contention that every entry in APAR / ACT of an employee, it should be communicated to him within a reasonable period, the Learned Senior Counsel appearing for the Petitioners seeks in aid of the decision of the Hon'ble Supreme Court in DEV DUTT V. UNION OF INDIA AND OTHERS, (2008) 8 SUPREME COURT CASES 725, at Special Page 726 and 727, whereby and whereunder, it is observed and laid down as under: "In this situation the "good" entry is in fact an adverse entry because it eliminates the candidate from being considered for promotion. 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. Grant of a "good" entry is of no satisfaction to an incumbent if it in fact makes him ineligible for promotion or has an adverse effect on his chances. "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 1993-1994 should be upgraded from "good" to "very good". After considering such a representation it was open to the authority concerned to reject the representation and confirm the "good" entry (though in a fair manner), but a 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 'good' entry. Non-communication of 'good' entry was arbitrary and hence illegal. (Paras 9 and 10)

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 benchmark or not. Even if there is no benchmark, 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 "outstanding'' entry. In most of the services, gradation of entries usually is, (i) Outstanding, (ii) Very Good, (iii) Good, (iv) Average, (v)Fair, and (vi) Poor. A person getting any of the entries at Serial Nos.(ii) to (vi) should be communicated such 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 authority concerned. If it is to be held that only 'poor' entry is to be communicated, consequences would be that persons getting 'fair', 'average', 'good', or 'very good' entries would not be able to represent for its upgradation, and this may subsequently adversely affect their chances of promotion (or get some other benefit). If office memorandum dated 10/11.9.1987 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 benefit. (Paras 13 to 16)

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. 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 principle of fairness, which is the soul of natural justice. Even an outstanding entry should be communicated since that would boost the morale of an employee and make him work harder. (Paras 16 to 18)

Communication of entries and giving opportunity to represent against them is particularly important on higher posts which are in a pyramidical structure where often principle of elimination is followed in selection for promotion, and even a single entry can destroy 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. In the present case, action of the respondents in not communicating 'good' entry for the years 1993-1994 to the appellant is arbitrary and violative of natural justice because in substance 'good' entry operated as an adverse entry. (Paras 22 and 23)"

6.According to the Learned Senior Counsel appearing for the Petitioners, in Office Memorandum bearing No.21011/1/2005-Estt (A) (Pt-II), Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) has conveyed its decisions therein in regard to the Maintenance and preparation of Annual Performance Appraisal Reports, whereby and whereunder in para-2, it is mentioned as follows: "2.Keeping in view the above position, the matter regarding communication of entries in the ACRs in the case of civil services under the Government of India has been further reviewed and the undersigned is directed to convey the following decisions of the Government:-

(i) The existing nomenclature of the Annual Confidential Report will be modified as Annual Performance Assessment Report (APAR)

(ii) The full APAR including the overall grade and assessment of integrity shall be communicated to the concerned officer after the Report is complete with the remarks of the Reviewing Officer and the Accepting Authority wherever such system is in vogue. Where Government servant has only one supervisory level above him as in the case of personal staff attached to officers, such communication shall be made after the reporting officer has completed the performance assessment. (iii) The Section entrusted with the maintenance of APARs after its receipt shall disclose the same to the officer reported upon.

(iv) The concerned officer shall be given the opportunity to make any representation against the entries and the final grading given in the Report within a period of fifteen days from the date of receipt of the entries in the APAR. The representation shall be restricted to the specific factual observations contained in the report leading to assessment of the officer in terms of attributes, work output etc. While Communicating the entries, it shall be made clear that in case no representation is received within the fifteen days, it shall be deemed that he/she has no representation to make. If the concerned APAR Section does not receive any information from the concerned officer on or before fifteen days from the date of disclosure, the APAR will be treated as final.

(v)The new system of communicating the entries in the APAR shall be made applicable prospectively on with effect from the reporting period 2008-09 which is to be initiated after 1st April 2009.

(vi)The competent authority for considering adverse remarks under the existing instructions may consider the representation, if necessarily, in consultation with the reporting and/or reviewing officer and shall decide the matter objectively based on the material placed before him within a period of thirty days from the date of receipt of the representation.

(vii) The competent authority after due consideration may reject the representation or may accept and modify the APAR accordingly. The decision of the competent authority and the final grading shall be communicated to the officer reported upon within fifteen days of receipt of the decision of the competent authority by the concerned APAR Section."

7.Continuing further, in Office Memorandum No.5(1)/2000-GM, Government of India, Ministry of Heavy Industries and Public Enterprises, Department of Public Enterprises dated 28.05.2009, in para-3, it is stated as follows:

"3. In compliance of the above referred judgment of Supreme Court, the Government has issued instructions to the effect that full Annual Performance Appraisal Report (APAR) including the overall grade shall be communicated to the concerned officer. It has also been provided that the concerned officer shall be given the opportunity to make any representation against the entries and final grading given in the report. A copy of the O.M. dated 14.05.2009 issued by Department of Personnel & Training in this regard is enclosed."

8.The Learned Senior Counsel appearing for the Petitioners invites the attention of this Court to the decision of the Hon'ble Supreme Court (Three-Judges Bench) in SUKHDEV SINGH V. UNION OF INDIA AND OTHERS (2013) 9 SUPREME COURT CASES AT PAGE 566, wherein it is observed as follows: "The view taken in Dev Dutt, (2008) 8 SCC 725 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 than 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 functions more in conformity with the principles of natural justice. Accordingly, it must be held that every entry in ACR-poor, fair, average, good or very good  must be communicated to him/her within a reasonable period."

9.Apart from the above, the Learned Senior Counsel appearing for the Petitioners banks upon the decision of the Hon'ble Supreme Court, ABHIJIT GHOSH DASTIDAR V. UNION OF INDIA AND OTHERS, (2009) 16 SUPREME COURT CASES AT PAGE 146 AT SPECIAL PAGE 148 wherein para-8, it is observed as follows: "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 case (2008) 8 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 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."

10.The pith and substance of the submissions of the Learned Senior Counsel appearing for the Petitioners before this Court is that in as much as the First Respondent/Indian Overseas Bank has not communicated the APAR marks for the years 2009, 2010 and 2011 to the Petitioners who received interview call letters on 21.07.2012 [later on, they were not allowed to take part in the selection process] and further, when the First Respondent/Bank had not communicated the APAR marks to the Petitioners for the aforesaid years in question, then, the promotion policy adopted by the First Respondent/Bank and awarding marks to the concerned candidates without adhering to law laid down by the Hon'ble Supreme Court in the Full Bench Decision of the Hon'ble Supreme Court in SUKHDEV SINGH V. UNION OF INDIA AND OTHERS (2013) 9 SUPREME COURT CASES AT PAGE 566, cannot stand a moment's scrutiny in the eye of law and as such, the same is invalid and illegal one in the eye of law.

11.In effect, the Learned Senior Counsel appearing for the Petitioners contends that the First Respondent/Bank has to follow the tenor and spirit of the decision of the Hon'ble Supreme Court, ABHIJIT GHOSH DASTIDAR V. UNION OF INDIA AND OTHERS, (2009) 16 SUPREME COURT CASES AT PAGE 146 and SUKHDEV SINGH V. UNION OF INDIA AND OTHERS (2013) 9 SUPREME COURT CASES AT PAGE 566, and also the bank should be directed by this Court to follow the circular of the Third Respondent in Ref. No.5(1)/2000-GM, Office Memorandum dated 28.05.2009.

The First Respondent/Bank's Submissions:

12.The Learned Counsel for the First Respondent/Bank submits that the First Petitioner had secured only 70% marks in APAR and that the Second Petitioner got superannuated on 31.03.2013 and the Third Petitioner retired on 31.01.2013 and the Fourth Petitioner was not selected and the Fifth Petitioner retired on 30.06.2013. In so far as the First Petitioner is concerned, since he had secured only 70% marks in APAR, he was not considered for selection.

13.The Learned Counsel for the First Respondent/Bank strenuously contends that the First Respondent/Bank has followed the instructions and guidelines on various subjects including formulation of promotion policy from time to time and added further, the rating system has not changed in any manner by the promotion policy introduced during the year 2012.

14.Added further, the Learned Counsel for the First Respondent/Bank makes a submission that it was only the application of undisputed rating system in the immediately preceding three years would be taken in to account for consideration for promotion and the officers who were not promoted by virtue of having secured less than 75 marks in three years could not make any grievance at all for not being provided with an opportunity.

15.The Learned Counsel for the First Respondent/Bank refers to Petition(s) for Special Leave to Appeal (Civil) No(s).15770/2009 of the Hon'ble Supreme Court between UNION OF INDIA V. A.K.GOEL & OTHERS and submits that on 29.03.2010, the Hon'ble Supreme Court has granted leave and further, in view of the apparent conflict between the decisions of this Court in Dev Dutt v. Union of India & Ors. 2008 (8) SCC 725 on the one hand and Satya Narain Shukla v. Union of India 2006 (9) SCC 69 and K.M.Mishra v. Central Bank of India and Others 2008 (9) SCC 120, referred the appeals to a Larger Bench.

16.Also, the Learned Counsel for the First Respondent/Bank refers to Office Memorandum in Ref.No.21011/1/2010/Estt.A, Government of India, Ministry of Personnel, Public Grievances & Pensions, Department of Personnel & Training dated 27.04.2010, wherein in para Nos.2 and 3, it is mentioned as under: "2. The Hon'ble Supreme Court in their judgment dated 12.05.2008 in Civil Appeal No.7631 of 2002 (Dev Dutt v. Union of India) had held that the 'good' entry in the ACR of the appellant which had not been communicated to him and considered in a past DPC which found him unfit for promotion, should be communicated for representation and if upgradation is allowed by the competent authority, he should be considered for promotion retrospectively by the DPC. When the petitions in SLP (Civil) No.15770/2009, now converted to Appeal Civil No.2872 of 2010 (Union of India v. A.K.Goel & Ors.) were called for hearing, the Supreme Court has taken note of the apparent conflict between the decision of the Hon'ble Court in Dev Dutt case on one hand and the judgments of Supreme Court in Satya Narain Shukla Vs. UOI 2006 (9) SCC 69 and K.M.Mishra v. Central Bank of India & Ors. 2008 (9) SCC 120 on the other hand and by their Order dated 29.03.2010, the Hon'ble Court has referred these appeals to a Larger Bench (copy attached).

3. In the light of the Orders issued by Hon'ble Supreme Court in the aforesaid SLP (Civil) No.15770/2009, Union of India Vs. A.K.Goel & Ors., all Ministries/Departments are advised that wherever Petitioners have been filed in the Courts to grant relief on the basis of the aforesaid decision of the Supreme Court in Dev Dutt case, the latest Orders of the Supreme Court in A.K.Goel case may brought to the notice of this Court."

17.The primordial attention of the Learned Counsel for the First Respondent/Bank is that only the application of undisputed rating system immediately preceding three years was taken into account by the First Respondent/Bank and indeed, the officers who were not eligible for promotion by virtue of their secured less than 75% marks in three years, by no stretch of imagination could have a legitimate or reasonable grievance as the case may be, so to say that they were not provided for an opportunity because of the simple reason,there was no need to provide an opportunity to the said officers.

18.The Learned Central Government Standing Counsel appearing for the Second and Third Respondents refers to the Office Memorandum bearing No.5(1)/2000-GM, Government of India, Ministry of Heavy Industries and Public Enterprises, Department of Public Enterprises, dated 28th May, 2009 [issued by the Director], wherein para-3, it is mentioned as follows: 3. In compliance of the above referred judgment of Supreme Court, the Government has issued instructions to the effect that full Annual Performance Appraisal Report (APAR) including the overall grade shall be communicated to the concerned officer. It has also been provided that the concerned officer shall be given the opportunity to make any representation against the entries and final grading given in the report. A copy of the O.M. Dated 14.5.2009 issued by Department of Personnel & Training in this regard is enclosed. and contends that the Annual Performance Appraisal Report (APAR) should be communicated to the Officer concerned. Also that, the concerned officer is to be provided with an opportunity to make any representation against the entries and final scrutiny mentioned in the report.

Discussions:

19.It is not in dispute that in the present case in hand, the Petitioners were not communicated with the APAR marks for the years 2009, 2010 and 2011. In fact, they were kept in dark about the APAR marks secured by them for the aforesaid years. It cannot be gainsaid that every entry in APAR or ACR should be communicated to an employee, irrespective of facts, whether the concerned employee had secured the rating 'poor, fair, average, good or very good or outstanding' as the case may be. It is needless for this Court to make a significant mention that the said entry irrespective of scrutiny of marks as stated supra, should be communicated to the concerned employee within a reasonable period/time.

20.It cannot be out of place for this Court to make a pertinent mention that an adverse entry alone should be communicated to an employee. If the communication of every entry in APAR/ACR is done quite in tune, tenor and spirit of the Hon'ble Supreme Court decision in SUKHDEV SINGH V. UNION OF INDIA AND OTHERS (2013) 9 SUPREME COURT CASES AT PAGE 566, (Three-Judges Bench), then, it will not only bring transparency in the scrutiny of remarks or recording the remarks pertaining to certain employees. If these practices are resorted to, then, it will satisfy the requirement of adherence to the Principles of Natural Justice. It is true that the Principles of Natural Justice are not edicts of a statute. To put it precisely, there are no set of straight jacket non-humane formula viz., in respect of principles of natural justice, it may be undisputed one or unqualifying one. It is needless for this Court to point out that in every executive/administrative action adherence to the principles of natural justice are to be considered as sacrosanct.

21.It is to be pointed out that non-communication of APAR might amount to denial of reasonable opportunity to an officer/ employee to improve himself/herself and also render it impossible to put forward an effective representation against the remarks so made. Also that, in considering the action upon adverse remarks, the parties must act fairly and apply their minds. At this stage, this Court worth recalls and recollects the Golden words of Justice Brennan, who aptly said Nothing rankles more in the human heart than a brooding sense of injustice. Illness we can put up with. But Justice makes us want to pull things down.

22.It is to be noted that Article 51 A of the Constitution of India enjoins upon every citizen the essential duty to constantly endeavour to prove excellence individually and collectively as an opportunity of the group. In fact, an uncommunicated adverse APAR/ACR cannot be used to deny any service benefit, eg. Continuity, confirmation, promotion, opportunity for deputation, etc.,

23.The highest/maximum thing that would happen in case when an every entry in APAR irrespective of scrutiny like, 'poor, average, good, very good, outstanding' is communicated, then there is a possibility for the aggrieved/affected employee to know his position or at a place where he stands and that will also provide a cementing platform for him to put in more extra efforts/to work harder and achieve more results that will point out that the steps to be taken by him for improving his work and to perform for better results of out turn.

Dispositions:

24.Be that as it may, in the upshot of detailed quantitative and qualitative discussions and also this Court taking note of the attendant facts and circumstances of the case, in an integral fashion, (which float on the surface), comes to an inescapable and inevitable conclusion that the First Respondent / Bank, in the present case on hand, had not communicated the APAR marks for the years 2009, 2010 and 2011 to the Petitioners and the said non-communication has affected the Petitioners in regard to their eligibility for SMG Scale IV for promotion to SMG Scale V is concerned. In this regard, the promotion policy adhered to by the First Respondent/Bank for the Years 2009, 2010 and 2011 in so far as it has not communicated the APAR marks to the Petitioners and not followed the Hon'ble Supreme Court decision in Dev Dutt v. Union of India and Others and reiterated in Abhijit Ghosh Dastidar v. Union of India and Others, (2009) 16 SCC 146 and has resulted in miscarriage of justice in so far as the Petitioners are concerned.

25.At the risk of repetition, this Court makes a pertinent reference to the decision of the Hon'ble Supreme Court in SUKHDEVI SINGH V. UNION OF INDIA AND OTHERS, (2013) 9 SUPREME COURT CASES AT PAGE 566, in para-8, it is inter alia mentioned that '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.' To put it succinctly, in the said decision, the Hon'ble Supreme Court has categorically laid down that every entry in APAR-poor, fair, average, good or very good must be communicated to him/her within a reasonable period. Admittedly, in the instant case on hand, APAR marks for the Years 2009, 2010 and 2011 were not communicated to the Petitioners. Therefore, this Court is perforced to interfere with the First Respondent/Bank's promotion policy for Officers, 2012, dated 12.05.2012 in so far as it relates to the non-communication of APAR marks for the years 2009 to 2011 in respect of the Petitioners concerned and sets aside the same, to prevent an aberration of justice and in furtherance of substantial cause of justice.

26.In the result, the Writ Petition is allowed. No costs. The promotion policy of the First Respondent/Bank in respect of Officers for the Year 2012 dated 12.05.2012 is quashed by this Court in so far as it relates to non-communication of APAR marks for the period from 2009 to 2011 in so far as the Petitioners are concerned. Further, this Court directs the First Respondent/Bank to communicate the APAR marks secured by the Petitioners for the Years 2009 to 2011 within a period of four weeks from the date of receipt of copy of this order. It is open to the Petitioners to make a representation, if they are affected/aggrieved when they come to know about the APAR marks. The representation/objection to the APAR marks awarded by the First Respondent-Bank for the Years 2009 to 2011 in so far as the Petitioners are concerned, it may be taken into account by the First Respondent-Bank and to proceed further in the manner known to law and in accordance with law by passing a reasoned and speaking order on merits uninfluenced with any of the observations made by this Court in this Writ Petition. Further, it transpires that in M.P.No.3 of 2013 in W.P.No.19618 of 2012, this Court has directed the Respondents 'to keep one post of Senior Management Scale-V as vacant to each of the Petitioner, pending further orders'. Before parting with the case, this Court directs the First Respondent/Bank to take into consideration the order dated 25.07.2012 passed by this Court in M.P.No.3 of 2012 and to proceed further in the manner known to law and in accordance with law, especially with reference to the present order passed by this Court in this Writ Petition. Consequently, connected miscellaneous petitions are closed.

28.01.2014

kal

Index : Yes/No

Internet: Yes/No

Note: Issue Order Copy on 30.01.2014

To

1. Indian Overseas Bank,

Rep. by its Chairman and Director,

Central Office, 763, Anna Salai,

Chennai-600 002.

2. Union of India, rep. by

its Secretary,

Department of Ministry of Finance,

New Delhi.

3. The Secretary,

Department of Public Enterprises,

Union of India,

New Delhi.

M.VENUGOPAL, J

kal

W.P.No.19618 of 2012

&

M.P.No.3 of 2012 & M.P.No.1 of 2013

28.01.2014