UNION OF INDIA AND ANR. v. S.K. GOEL AND ORS

Citation: [2007] 2 S.C.R. 432

Court: Supreme Court of India

Bench: AR. LAKSHMANAN, ALTAMAS KABIR

Case summary

UNION OF INDIA AND ANR. v. S.K. GOEL AND ORS.pdf

Judgment text

UNION OF INDIA AND ANR. . J. r v. S. K. GOEL AND ORS. FEBRUARY 12, 2007 [DR. AR. LAKSHMANAN AND ALTAMAS KABIR, JJ. ] Service Law:.

,k- Annual Confidential Report (ACR)-Adverse entries and remarks in- Downgrading of ACR-Communication of-Requirement-Proceedings and recommendations ofDepartmental Promotion Committee (DPC)-Interference with-DPC was constituted for promotion to the post of Commissioner of Customs and Central Excise (CCE)-One of the Grade A officers of the Customs and Central Excise services represented that his ACRs for the years 1994-95 had not been properly graded or considered by DPC-He also claimed that the lower grading given to him by the Reviewing Officer on one ACR was not communicated to him-The representation of the officer was frejected-The officer was not promoted to the post of CCE-The Tribunal •, dismissed the application filed by the officer and held that it was not necessary to communicate the remarks/grading which were not adverse or not below the bench mark prescribed for promotion to a particular post-The High Court allowed the writ petition filed by the officer-Correctness of-Held: Only adverse entries and remarks are to be communicated and there is no provision to communicate the downgrading of ACR to a Government employee-It is not necessary to communicate the remarks/grading which are not adverse or not below the bench mark prescribed for promotion- 1- There will ordinarily be no interference by the courts oflaw in the proceedings and recommendations ofthe DPC unless such DPC meetings are held illegally or ;n gross violation of the rules-High Court judgment set aside.

The first respondent and respondent Nos. 2 to 5 joined the Indian Customs and Central Excise Service as Grade A Officers on probation as Assistant Collectors of Central Excise and were duly confirmed in Group A service. The respondents Nos. 2 to 5 were placed higher in the order of r'seniority. The first respondent was promoted on an ad hoc basis and was subsequently regularized. U. 0. 1. v. S. K. GOEL 433 .. ,. l A Departmental Promotion Committee (DPC) was constituted for promotion to the post of Commissioner ofCustoms and Central Excise. The first respondent represented against the seniority assigned to him and he claimed that his Annual Confidential Reports (ACRs) for the years 1994- 1995 had not been properly graded or considered by the DPC and that the lower grading given to him by the Reviewing Officer on one ACR was not communicated to him. The appellant rejected the representation of the first respondent and promoted respondents No.

2 to 5 to the post ofCommissioner of Central Excise and Customs. Being aggrieved, the first respondent filed an application before the Central Administrative Tribunal. The Tribunal dismissed the said application and held that it was not necessary to communicate the remarks/grading which were not adverse or not below the bench mark prescribed for promotion to a particular post. The High Court allowed the writ petition filed by the first respondent. Hence the appeal. The following question arose before the Court:- Whether the High Court had erred in its failure/omission to . take into consideration the government instructions for regulating/recording of ACR which provide for only communication of adverse remarks in the ACRs? Allowing the appeal, the Court HELD: 1. In the instant case, respondent No. 1 had received no adverse remarks and had rather been graded at the level of the prescribed bench mark of 'above average'.

Therefore, there was neither any onus nor requirement upon the appellant to have communicated the ACR entry to respondent No. 1. (Para 23) (443-D) Manik Chand v. U. 0. 1. (2002) 3 ATJ 268, Union of India v. Major Bahadur Singh, (2006) 1 SCC 368, R. L. Butail v. Union of India [1970] 2 SCC 876, State Bank ofIndia v. Kashinath Kher, (1996) 8 SCC 7. 62 and State ofU. P. v. Yamuna Shankar Mishra, AIR (1997) SC 367, referred to. 2. 1. The Departmental Promotion Committee (DPC) followed the prescribed norms as also applied its discretion vested in it to determine the comparative merit ofthe eligible officers and tbereafter made recommendations in order of merit There was thus no occasion or justification for interference in the order passed by the appellants, as upheld by the Tribunal. [Para 241 (443-EJ UP. Jal Nigam v. Prabhat Chandra Jain, AIR (1996) SC 1616, held inapplicable. 2. 2.

In this case, the downgrading had been done by comparison andthere appears to be no reason recorded for such downgrading. However, in the instant case, the downgrading still meets the bench mark and, therefore, merely because certain persons have been assessed by the DPC to be better than the first respondent, it did not imply that he should have been communicated his grading. [Para 25] [443-G-H; 444-A] 3. The judgment of the Tribunal does not call for any interference inasmuch as it followed the well settled dictum of service jurisprudence that there will ordinarily be no interference by the courts of law in the proceedings and recommendations of the DPC unless such DPC meetiDgs are held illegally or in gross violation of the rules or there is mis-grading of confidential repost~. In the present case, the DPC had made an overall assessment of all the relevant confidential reports of the eligible officers who were being considered.

The DPC considered the remarks of the reviewing officers. There was clear applicJition of mind. Respondent No. l did fulJill the bench mark. [Para 26] (444-B-C) • ""! , 4. 1. The post of the Commissioner of Customs and Central Excise is a post required to be filled up on selection made strictly on the basis of merit. No judicial review of the DPC proceedings, which are ordinarily conducted in accordance with the standing government instructions and Rules is warranted. (Para 27] [444-E) 4. 2. It is, thus, seen that the decision taken by the appellants has been as per the instructions issued on the subject that only adverse entries and remarks are to be communicated and there is no provision to communicate the downgrading of ACR to a government employee. The decision of the Central Government is in strict accordance with the prevailing rules and government instructions. [Para 271 [444-Fl 5. 1.

In the absence of any violation, the impugned order ofthe High Court while undertaking a judicial review under Article 226 of the Constitution of India is wholly unjustified. Since the matter ofseniority has been well settled and this Court, in a plethora of cases, has held that the seniority/promotion granted on the strength of the DPC selection should not be unsettled after a lapse of time.. Therefore, in the facts and circumstances of the present case, where there is no adverse remarks whatsoever against respondent No. I, the U. 0. 1. v. S. K. GOEL [LAKSHMANAN, J. J 435- . ,-4. High Court ought not to have interfered with and passed the impugned directions. ! Para 2711444-G-H) 5. 2. The DPC enjoyed full discretion to devise its method and procedure for objective assessment of suitability and merit of the candidate being considered by it. Hence, the impugned order of the High Court is liable to be set aside. {Para 27) (445-B) .. • Aili/ Katiyar v.

Union of India, (1997) 1 SCC 280 and Union Public Service Commission v. L. P. Tiwari, (2006) 12 SCALE 278, relied on. -~ U. P. S. C. v. K. Rajaiah, (2005) 10 SCC 15, cited. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 689 of2007. From the Final Judgment and Order dated 13. 1. 2005 of the High Court ofDdhi in W. P. No. 5404/2003. R. Mohan, A. S. G. , T. S. Doabia, Tufail A. Khan, B. K. Prasad and P. Parmeswaran for the Appellants. 1 Rajiv Dutta, Ajay Veer, S. K. Singla, B. S. Jain, M. F. Humayunisa, Kumar ~ Dushyant Singh and Vipin Gupta for the Respondents. The Judgment of the Court was delivered by DR. AR. LAKSHMANAN, J. 1. Leave granted. 2. The Union of India through Secretary, Department of Revenue, Ministry of Finance, New Delhi is the first appellant in this appeal. The 'I\ second appella~t is the Department of Personnel and Training through its Secretary, Ministry of Personnel & Pension, New Delhi. The first respondent is the contesti_ng respondent. Respondent Nos.

2-5 and the first respondent joined the Indian Customs and Central Excise Service as a Grade A Officer on probation and was promoted as Assistant Collector of Central Excise after selection by the UPSC. Respondent No. I and other respondents were confirmed in Group A service. In the order, the proforma respondents were . -] placed higher in order of seniority. Thereupon respondent No. I was promoted as Deputy Collector ofCentral Excise on an ad hoc basis in the year 1983 and . the said appointment was regularized as Deputy Collector of Customs and Central Excise, vide order dated 16. 7. 1985. The Government oflndia, Ministry of Finance issued an Office Order No. I87 of 1997 for the ad hoc promotion of respondent No. I and proforma respondents to officiate in the grade of Commissioner of Customs and Central Excise. 3.

The Departmental Promotion Committee (for short "the DPC") was constituted for considering officers for promotion to the post ofCommissioner of Customs and Central Excise in April, 1997 and February, 1998. Respondent No. I represented against the seniority assigned to him and he Claimed that his ACR's for the year 1994-1995 had not been properly graded or considered by the DPC and the lower grading given to him by the Reviewing Officer on one ACR was not proper and DPC ought to have considered the higher grading given by the reporting Officer. 4:' The Office Order No. 11 of 1999 was issued on 12. 1. 1999 by the Government oflndia, Ministry of Finance whereby promotions ofthese officers were made on the post of Commissioner ofCustoms and Central Excise. Office Memorandum No. F. No. Q-32012/10/97-AO-II Govt. of India, Ministry of Finance, Department of Revenue was issued whereby the representation of respondent No.

I was rejected for the following reasons stated as under: "(i) The recommendations of the 5th Central Pay Commission that for promotion to the Central Services, as in the case of IAS Officers, the . ' inter-se seniority as fixed by the UPSC at initial entry into the seryice, should remain unaffected, is under consideration of the Govt. and a decision in this respect is likely to take time as these involve significant modifications in DPC guidelines. As the recommendations of the Pay Commission are yet to be accepted by the Govt. , the existing instructions/guidelines of the Govt. pertaining to DPC are required to be followed. (ii) The provisions of para 6. 2. l(e) ofthe DPC guidelines circulated by DOP&T vide their OM dated 10th April, 1989 were followed by the DPC which met in UPSe and considered the case of Sh. Goel for promotion to the grade of Commissioner.

As such, it may not be appropriate to say that the DPe took into consideration the lower • grading given to Shri Goel by the reviewing officer and not the higher grading given by the reporting officer. (iii) Although, the reviewing officer had slightly downgraded the overall grading on Shri Goel in the ACR for the year 1994-95 and the . AeR also could not be sent to eve for counter signature, it cannot be concluded that it had adverse impact on the findings of the DPe in the matter of his promotion to the grade ofCommissioner. The DPC made its own assessment on the basis of the entries in the ACRs and overall grading of the reviewing /reporting officers was of no consequence. (iv) It is not for an individual officer to claim that his case is outstanding or otherwise as has been claimed by Shri Goel in his representation. It is for the DPC to make assessment on the officer after going through his service records. The mere grant of presidential Award - "'/..

_ cannot entitle an Officer to claim that he should be awarded outstanding grading by the DPC. " 5. Respondent No. I filed OA No. 141 of 2000 before the Central Administrative Tribunal, Principal Bench, New Delhi with the following prayers:- "(i) To direct that, in the grade of Commissioner, the seniority of the applicant over respondents 3 to 6 be maintained, and, therefore, to declare the impugned Office order No. l I of I999 illegal to the extent it places respondents 2 to 5 above the applicant, and to give correct placement of the applicant at SL No. I of the list contained in the said order, (ii) In the alternative, to set/quash the promotions of respondents 3 to 6 insofar as they have been promoted and given seniority above the applicant, (iii) To quash and set aside the undated Office Memorandum (Annexure-A2) issued by the respondent No.

2, (iv) To grant costs of this application to the applicant herein, and (v) To pass such other order or orders as may be deemed fit and proper in the interests of justice. " 6. The appellants filed their counter affidavits rebutting the claim of respondent No. l. It was submitted that the DPC had followed duly approved norms and procedure as prescribed vide para 6. 2. I of M. M. (DOP & T) No. 22011/556-Estt. {D) dated I0. 4. I989. 7. The Tribunal dismissed the said petition by following the Full Bench decision in the case of Manik Chand v. V. 0. 1. & Ors. , (2002) 3 ATJ 268 to hold that it is not necessary to communicate the remarks/grading which are not adverse or not below the bench mark prescribed for promotion to a particular post in respect of a selection post. In other words, if the applicant was meeting the bench mark, the question of communication of the entry, which in no event can be termed as adverse, would have arisen. . ' 8.

The Tribunal also considered and distinguished the facts and ratio ' of the case of U. P. Jal Nigam v. Prabhat Chandra Jain, AIR (1996) SC 1616 by observing that it was not shown that the confidential reports had been down graded and once they were not down graded, the question of communi ' have carefully perused the same. The DPC, in our view, followed the prescribed norms as also applied its discretion vested in it to determine the comparative merit of the eligible officers and thereafter made recommendations in order of merit. There was thus no occasion or justification for interference in the order passed by the appellants, as upheld by the Tribunal. 25. Learned senior counsel appearing for respondent No. I placed strong reliance on the judgment of this Court in UP. Jal Nigam (supra). In our opinion, the said decision is entirely distinguishable on facts and circumstances from the case on hand and is wrongly been relied upon by the High Court. In the UP.

Jal Nigam 's case, the officer concerned Shri P. C. Jain had been downgraded at certain point of time. Before the High Court, it had been alleged that downgrading of entry could not be termed as adverse and that the same should be communicated. The U. P. Jal Nigam Service Rules provided for communication of adverse entries. In this case, downgrading had been done by comparison and there appears to be no reason recorded for such downgrading. However, in the instant case, the downgrading still meets the · , bench mark and therefore, merely because certain persons have been assessed · by the DPC to be better than the respondent, did not imply that he should have been communicated his grading. ~ 26.

In our opinion, the judgment of the Tribunal does not call for any interference inasmuch as it followed the well settled dictum of service >jurisprudence that there will ordinarily be no interference by the courts of law in the proceedings and recommendations of the DPC unless such DPC meetings are held illegally or in gross violation of the rules or there is mis- • grading of confidential reports. In the present case, the DPC had made an overall assessment of all the relevant confidential reports of the eligible officers who were being considered. The DPC considered the remarks of the ( reviewing officers. There was clear application ofmind. Respondent No. I did . X:fulfill the bench mark. Hence, the impugned direction of the High Court ought ·~ not to have been issued as the same will have the impact of causing utter confusion and chaos in the cadre of the Indian Revenue Service, Customs l an,d Central Excise Service. ' (" 27.

It was also argued by the learned senior counsel appearing for " respondent No. I that the entries for the period had an element of adverse ::::::: reflection and for that purpose the seniority of respondent No. I was downgraded and, therefore, the ACR ought to have been communicated to respondent No. I. In our opinion, the observations of the High Court are f wholly unjustified inasmuch as the post of Commissioner of Customs and Central Excise is a post required to be filled up on selection made strictly on ··the basis ofmerit. No judicial review of DPC proceedings, which are ordinarily conducted in accordance with the standing government instructions and Rules is warranted. The norms and procedure for DPC are prescribed in O. M. dated 10. 4. 1989.

It is thus seen that the decision taken by the appellants has been as per the instructions issued on the subject that only adverse entries and remarks are to be communicated and there is no provision to communicate the downgrading of ACR to a government employee. The decision of the ,_ _ Central Government is in strict accordance with the prevailing rules and government instructions. In the absence of any violation, the impugned order ~ of the High Court while undertaking a judicial review under Art. 226 of the Constitution of India, is wholly unjustified. Since the matter of seniority has been well settled and this Court in a plethora of cases has held that the seniority/promotion granted on the strength of DPC selection should not be unsettled after a lapse of time. Therefore, in the facts and circumstances of Y-the present case, where there is no adverse remarks whatsoever against respondent No. I, the High Court ought not to have interfered with and passed the impugned direction.

This apart, as per the instructions contained ~ +- U. 0. 1. 1·. S. K. GOEL [LAKSHMANAN. J] 445 in para 6. 21 ofDOPT Order No. 22011/5/86/Estt Ddated 19. 4. 1981, as amended, . J. _ the DPC is not required to be guided merely by the overall grading, if any, that may be recorded in the CRs but to make its own assessment on the basis of the entries in the CRs. The DPC enjoyed full discretion to devise its method and procedure for objective assessment of suitability and merit ofthe candidate being considered by it. Hence, the impugned order of the High Court, in our opinion, is liable to be set aside. 28. Case law on the subject ~ Y.. _ I. Anil Katiyar(Mrs. ) v. Union ofIndia & Ors. , (1997) I SCC 280 : The appellant and respondent No. 4 in this case had joined the Central Agency Section in the Ministry of Law of the Government of India as Assistant Government Advocates. The appellant was junior to respondent No. 4.

While considering them for promotion to the post of Deputy Government Advocate, which is a selection post, the DPC graded both of them as "very good" and on the ground of seniority selected respondent No. 4 for the said post. The appellant unsuccessfully challenged the selection of respondent No. 4 before the CAT on the ground that the DPC was not justified in grading her merely as "very good" as in the ACRs for two of the relevant three years the departmental authorities had graded her as "outstanding" and for the third ' year as "very good" while they had graded respondent No. 4 as "very good" in all the three ACRs. The CAT while refusing relief to the appellant on the ground of want ofjurisdiction to scrutinize the recommendations of the DPC, this Court perused the confidential procedure followed by the DPCs in the Union Public Service Commission for giving overall grading, including that of "outstanding" to an officer.

Thereafter, refusing to interfere with the selection of respondent No. 4 by the DPC but setting aside the said observation of the CAT, this Court held as under: - ~ "Having regard to the confidential procedure which is followed by the Union Public Service Commission, it is not possible to hold that the decision of the DPC in grading the appellant as "very good" instead of "outstanding" was arbitrary. No ground is, therefore, made out for interference with the selection of respondent 4 by the DPC on the basis of which he has been appointed as Deputy Government Advocate. But, at the same time, it has to be held that the Tribunal - -"I was in error in going into the question whether the appellant had been -~ rightly graded as "outstanding" in the ACRs for the years 1990-199I and 1991-1992.

The observations of the Tribunal that out of the two -t- "outstanding" gradings given to the appellant one "outstanding" ~ grading does not flow from various parameters given and the reports entered therein, cannot, therefore, be upheld and are accordingly set aside. " 2. Union Public Service Commission v. L. P. Tiwari & Ors. , (2006) 12 SCALE 278: This case relates to grading in selection list for promotion to Indian Forest Service. The jurisdiction of Courts to interfere with evaluation ~ made by the expert committee was under consideration. The respondents 1-were serving as State Service Forest Officers in the post of Assistant )(_ j Conservator of Forests. Both the officers became eligible to be promoted to the Indian Forest Service. On an overall service records, Selection Committee assessed respondent as being "very good" and included his name at S. No. 10 in the Select List of 200 l.

Respondents 4-8 were assessed as "outstanding" by the Selection Committee and were included at S. Nos. 3-7 in the selection .. --' list. Respondent No. I claimed that he ought to have been assessed as &- "outstanding" and should have been assigned seniority in the Indian Forest Service Cadre over respondents 4-8. The Tribunal came to the conclusion that patent material irregularities had been committed by the Selection Committee for the year 200 l. This Court allowed the appeal filed by the UPSC and held t that the evaluation made by an expert committee should not be easily interfered with by the Courts which do not have the necessary expertise to undertake ' the exercise that is necessary for such purpose. Speaking for the Bench, t Altamas Kabir,J. in paragraphs 12, 13 & 14 of. the judgment held as under: "12. It is now more or less well-settled that the evaluation made by an expert committee should not be easily interfered with by the Courts ,..

which do not have the necessary expertise to undertake the exercise Ithat is necessary for such purpose. Such view was reiterated as late 'i as in 2005 in the case of UP. SC. v. K. Rajaiah and Ors. , reported in i- - [2005] I0 SCC 15, wherein the aforesaid Rules for the purpose of promotion to the l. P. S. Cadre was under consideration. Apart from the t above, at no stage of the proceedings, either before the Tribunal or t- ~ the High Court or even before this Court, has any allegation of mala fides been raised against the Selection Committee and the only grievance is that the Selection Committee erred while making assessment of the. comparative merits of the respective candidates. Y- While concluding his submissions, Mr.

Rao had pointed out that the direction given by the High Court to the appellant to hold a Review Departmental Promotion Committee was also erroneous since the Regulations provided for selection to be made not by a Departmental Promotion Committee but by a Selection Committee constituted as per the Regulations. 13. Although, on behalf of the respondents it has been urged that there was no bar which precluded the Tribunal from looking into the original ACRs of the respective candidates, what we are required to consider is whether it was at all prudent on the part of the Tribunal to have adopted such a procedure which would amount to questioning the subjective satisfaction ofthe Selection Committee in preparing the Select List. 14.

From the submissions made and the materials on record, we are satisfied that the methodology which has been evolved and included in the Regulations for grading the eligible officers have been religiously followed by the Selection Committee which did not call for any interference by the Tribunal. The High Court has merely followed the decision of the Tribunal without independently applying its mind to the facts involved. " 29. For the foregoing reasons, we hold that the DPC enjoyed full discretion to devise its method and procedure for objective assessment of > ' suitability and merit of the candidate being considered by it. Hence, the interference by the High Court is not cal! ed for. 30. Accordingly, the Civil Appeal stands allowed and the judgment of the High Court is set aside. However, there shall be no order as to costs. v. s. s. Appeal allowed. -r