CENTRAL INFORMATION COMMISSION
Appeal No.CIC/WB/A/2007/00368 dated .2007
Right to Information Act 2005 - Section 19
Appellant - Col. H. C. Goswami (Rtd) Respondent - Military Intelligence, Army HQs Ministry of Defence (MoD)
The appellant Col Goswami of Mayur Vihar, Delhi filed his RTI request dated 23.11.2006 with the CPIO, Integrated Headquarters, Ministry of Defence seeking information as follows:
"Regarding the proceedings of No. 2 Selection Board held in August/September 1999 and the proceedings of No. 2 selection Board held in Aug/Sep 1990 of 1963 batch for promotion to the rank of Brigadier:
1. The extracts of all my ACRs which were considered for his promotion to the rank of Brigadier
2. The OAP (Overall Performance) Grading/Pointing of his promotion to the rank of Brigadier of the batch 1999 with whom my name was considered.
3. The OAP of the last officer who was approved and promoted to the rank of Brigadier of the batch 1999 with whom my name was considered
4. The OAP Grading/Points of the last officer of 1963 batch who was approved by the No. 2 Selection Board held in Aug/Sep 1990 for promotion to the rank of Brigadier:"
The CPIO, Additional Directorate General of Public information, Directorate General of Military Intelligence, Army Headquarters, informed Col Goswami through his letter dated 15.01.2007 that:
"The information requested by him is personal information, the disclosure of which has no relationship with any public activity and the same is held in its fiduciary capacity by the MS Branch. Hence the information is denied in terms of Sec 8(1) (e) and (j) of the RTI Act 2005"
The appellant filed a first appeal before the DG (DC&W) 29.01.2007 on the grounds that:
"He had requested for certain information which is in the interest of the public for showing/proving the transparency of selection boards held for various promotions to the higher ranks of the army. The information will also prove the honesty and sincerity of all reporting channels."
After an interim reply dated 27.02.207 seeking further time, a final decision was passed by Appellate Authority Lt Gen IJ Koshy dated 08.03.07 rejecting the appeal "being bereft of merit". Hence this appeal before us.
The appeal was heard on 28.7.2008. The following are present: Appellant
Col. H. S. Goswami
Brig. P.R. Sangam, SM CPIO & DDG RTI
Brig. P. Chakraborty, DDG AE
Maj. (Ms) Manisha Gahlot, GSO-1 (Legal)
Col. V. Nangia, Col. MS Legal
Col. Rajinder Kumar, Col. M.S. Legal.
Col. B.S.Raju, Col. M.S. Legal.
Both parties submitted written arguments. Col. Goswami has quoted extensively from several State Information Commissions regarding the disclosure of ACRs. His arguments are as follows:
"I am of the opinion the disclosure of ACR is in Larger Public Interest and a Positive Step towards "GOOD GOVERNANCE". The RTI Act in its Preamble says to provide for access to information under the control of public authority in order to promote transparency and accountability in the working of every public authority. The whole Act is in light of democratic approach of participating governance. Sometimes inevitably those involved in the conduct of government, as in other walks of life, are guilty of error, incompetence, misbehaviour, even dishonesty and malpractices, those concerned may very strongly wish that facts relating to such matter are not made public. Public may reflect discredit on them or their predecessors, it may embarrass authorities, impeach process of administration. Denial to the
access of ACRs is a negative step in participating governance and transparency.
The Right to Information Act, 2005 shows the order of the day is: (a) OPENNESS
The foundation of an healthy organization is transparency and a step towards positive democracy which is in a larger public interest. The RTI Act is progressive in nature, public servants/ authorities cannot frustrate information connected with public servants records. The privilege of secrecy which existed in old times that public authority is not bound to disclose facts about the functioning does not survive under the Article 19 (1) (a) of the Constitution. There exists Right of Speech. Freedom of Speech is based on freedom of right to know.
Any information related to a person, connected with discharge of his public duties, I s in public interest. The ACRs are related to his performance for public functions, hence the ACR of any public servant is a public record. Based on the quality of these records, he gets remunerations from public exchequer. These remunerations and promotions guide the course of his present and future life. It affects his mind, body, well-being, social relations, economic status of his family and dependents, and hence becomes larger public interest. Therefore, the officer is entitled to know the grading of his ACRs which is his fundamental right ,as a selection process and his promotion is based on the grading awarded to him in his ACRs.
Principle of natural justice and spirit of transparency allow pursuing the records in the matter of promotion/ non promotion. The State Information Commission has stated that service records of public servants are maintained for his service in public interest and therefore cannot be termed to be in personal interest. Personal interest confines to all such matters which are of private nature and has no direct/ indirect relationship with official functions.
Section 8 (1) (e0 of RTI Act indicates that information available to a person in a fiduciary relationship is not to be disclosed. Fiduciary relationship is a relationship involving trust especially with regard to the relationship between a trustee and beneficiary. The relationship of an officer with superior officer who record/ review/ accept the grading of an ACR cannot be termed as relationship between trustee and beneficiary as ACR of a particular officer is
recorded, received and accepted in purely administrative manner and the officer whose ACR is recorded can never be termed as beneficiary and Government as trustee. Hence this clause is not applicable (refer orders of Assam Information Commission at page 3 (4), dated 13-11-2007 in case No. KP (M) 18/2007, at Annexure 5 to these submissions.
Under Section 8 (1) (j) it must be clearly understood that the grading of the officer in the ACR will not fall within the meaning of this subsection, as it is general in nature and not specific to any personnel character of the officer. The grading on the other hand does not mean any personal information, the disclosure of which could cause unwarranted invasion of privacy of individual officer. Hence it is not acceptable that the grading in ACRs cannot be disclosed. Hence and this clause is not applicable. (please refer order of Assam Information Commission at page 3 (4), dated 13- 11-2007 in case No. KP (M) 18/2007, attached at Annexure 5 to these submissions.
The denial of information of ACRs under the terms of a) Fiduciary
cannot be applied. The State can and should impose restrictions in the matter such as:
i) Disclosure of which would prejudicially effect the sovereignty and integrity of the nation.
ii) Security and strategic policies of the state. iii) Scientific or economic interest of the state. iv) Information expressly forbidden by any court of law, the disclosure of which may constitute contempt of court or matters of serious nature.
I am, therefore, of the opinion that the disclosure of ACRs.
(a) Shall improve interpersonal relationship in a given organization, if the ACRs are written with honesty, impartiality and objectivity. (b) Shall build trust and confidence between officers at various levels.
(c) Shall not harm public interest in terms of objectivity of assessment.
(d) Shall keep official informed of how their superiors assess their performance resulting in overall work environment.
And finally a positive step towards good governance and exposure of errors in governance."
Respondents on the other hand have also submitted their written argument as below :
"It is submitted that the information sought at Para 1(a) pertains to disclosure of ACR grading of the applicant/ appellant himself which was taken into consideration for promotion to the rank of Brig by No. 2 Selection Board held in Aug/ Sept 1999. In this matter, it is humbly submitted that the information sought is personal and Confidential in nature which is held by the Military Secretary's Branch in the fiduciary capacity and moreover, the Hon'ble Commission, in a number of decisions, has held that the details of ACRs are exempted from disclosure u/s 8 (1) (e) and 8(1)(j) of the RTI Act 2005. Therefore, it is submitted that in the instant case the applicant/ appellant has sought ACR information pertaining to himself, which is Confidential information and is barred from disclosure u/s 8 (1) (e) and 8(1)(j) of the RTI Act 2005.
With respect to information sought at Para 1 (b), it is submitted that the Selection Board considers the overall profile of an officer, which includes his ACR grading, course grading, disciplinary back ground, honours and awards etc. It is submitted that as per the existing selection system in the Army, there is no such OAP per se placed before Selection Boards for consideration of officers. Since there is no OAP for approving the officers for promotion in the Army and the officers are empanelled for promotion based on their overall profile within the batch and the number of vacancies, it is humbly submitted that the information sought by the appellant is not available ,hence cannot be disclosed.
With respect to information sought at Para 1 (c ) and 1 (d), it is once again submitted and reiterated that no such final comparative merit showing OAP of the first or last officer is drawn and placed before the Selection Board. The Selection Board while considering an officer for promotion takes into account a number of factors as explained vide Para 3 above i.e. ACR grading, honours and awards, course grading, disciplinary background etc and the officers are empanelled for promotion based on their overall profile within the batch vis-à-vis the available number of vacancies. Hence, it is submitted that no such information about 'the OAP of the last officer who was approved and promoted to the rank of Brig of the 1999/1963 batches' as sought by the appellant is available, hence the same cannot be disclosed.
In view of all above, it is respectfully submitted that the information sought by the applicant/appellant may be denied being barred from disclosure u/s 8 (1) (e) and 8(1)(j) of the RTI Act 2005 (Query 1 (a) and no such information pertaining to the OAP being available with the Competent Authority (Queries 1(b), (c ) and (D)."
Col. V. Nangia MS (Legal) submitted that the ruling of the Hon'ble Supreme Court in Civil Appeal No. 7631 of 2002 in the case of Shri Dev Dutt vs. Union of India is not applicable to the Army. In the Army's case, a decision of the Apex Court in the case of Maj. Bahadur Singh, 2006 (1) SCC 368 is applicable. Col. Rajinder Kumar also Col. MS (Legal) submitted that there is no appraisal known as O.A.P. (Overall performance) with the Ministry of Defence and no figurative assessment of officers. He submitted a sample of an 'overall profile' which is considered by senior officers tom determine promotion, which is prepared under the following heads :
Member Data Sheet
Prev Bd Res-
A sample profile submitted during the hearing has been placed on file. The grading done here is purely on the basis of the information held in ACRs and comprises in fact, extracts from ACRs. He also submitted a detailed statement on selection system followed in the M.S. Branch Army HQ for selection of Officers of the rank of Lt. Col. and above, in which the Selection System of the Selection Board is described under the following heads:
1. Aim of the Selection Board.
2. Composition of the Selection Board.
3. Role of Head of Arm/Services.
4. Guidelines of Assessment.
5. Conduct of Selection Board
This circular also gives guidelines for internal assessment and composition of Selection Boards and grading to be awarded for promotion due to the selective ranks under the following heads :
.-.-.-.-.-.-.-.-.--.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.- Ser No. Grading Meaning of the Grading. -.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-
(a) 'B' Fit for promotion in his turn to the next rank.
(b) 'Z' Not empanelled.
(c) 'D" 'Defer' consideration of the case till the officer a. Is adequately exercised in criteria appointment.
(d) 'W' Withdrawn cannot be awarded a definite Grading a. Incomplete documentation."
In this case the question of disclosure of ACRs is germane. Depending on a decision in this regard. decisions regarding other points on which information has been sought will also flow. This Commission has earlier consistently taken the stand that ACRs will fall under the mischief of Official Secrets Act 1953 and, therefore, will remain exempt u/s 8(2) unless the public authority concerned decides that "the public interest in disclosure outweighs the harm to the protected interest." However, the recent judgment of the Apex Court in Civil Appeal No. 7631 of 2002 ; Dev Dutt vs. Union of India puts a different perspective on such Decision. We have, therefore, examined the documents in the light of this
judgment. The judgment of Markandey Katju, J. and H. K. Sema, J reads as follows:
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 on 21.2.1993. 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 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 promotion. 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 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 the appellant.
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 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 his performance".
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.1
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' 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.
Highlighted by us
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 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). 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. Hence such non-communication is, in our opinion, arbitrary and hence violative of Article 14 of the Constitution.
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)2 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 `outstanding' entry.
15. In most services there is a gradation of entries, which is usually as follows:
(ii) Very Good
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 up gradation, and such a representation must be decided fairly and within a reasonable period by the concerned authority.
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 up gradation, 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 benefit.
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 up gradation. Hence non-communication of an entry is arbitrary, and it has been held by the Constitution Bench decision of this Court in Maneka Gandhi vs. Union of India (supra) that arbitrariness violates Article 14 of the Constitution.
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):
"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 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 promoted.
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 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 context.
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. Shepherd & 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".
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 (audialteram 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 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 up gradation. 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 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 possible.
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 corporations and other instrumentalities of the State (in addition to Government servants).3
........49. With these observations this appeal is allowed. No costs.
.............................................J. (H. K. Sema)
............................................J. (Markandey Katju)
May 12, 2008
From the above it is clear that the judgment of the apex court is not intended to be applicable to the military. However in this very ruling the apex court has dwelt at length about the applicability of the law of natural justice and the determination of this is the effect which the entry is having, which will determine whether it is an adverse entry or not.
In the present case the request of Col. Goswami who is now retired is for extracts of ACRs considered for his promotion to the rank of Brigadier. In light of what has been explained to us in the hearing, these are the extracts that would have been included in the Overall Profile and that can become the basis of answering the questions posed by him at both nos. 1 and 2 of his application. It is understandable that in the case of serving personnel, the disclosure of such information as is sought in the present case by Col. Goswami, could seriously compromise discipline, which is basic to Military service, and thereby become a potential threat to national security. In the case of a retired officer, however, the only effect of such disclosure could be to either confirm or rectify a promotion made in the case of an error or oversight and, therefore, at best lead to readjustment of pension benefits to applicant. This could also become the basis 3
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for psychological satisfaction. We are, therefore, of the view in the present case that the Overall Profile of Col. Goswami in considering his promotion which includes the relevant extracts of the ACR that were so considered, may be disclosed to Col. Goswami within ten working days of the date of issue of this Decision Notice.
Insofar as the information concerning question nos. 3 & 4 is concerned, this is third party information and in our view, its disclosure would constitute both breach of trust as well as invasion of privacy and, therefore, merits exclusion from disclosure u/s 8(1) sub sections (e) and (j).
Reserved in the hearing, this decision is announced on 31.7.08 in open chamber. Notice of this decision be given free of cost to the parties.
Chief Information Commissioner
Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges, prescribed under the Act, to the CPIO of this Commission.