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Sukhdev Singh v. Union Of India And Others
Factual and Procedural Background
The appellant, a Deputy Director of Training appointed on 13-11-1992, consistently received “Outstanding” or “Very Good” entries in his Annual Confidential Reports (ACRs) until the years 2000-2001 and 2001-2002, when he was graded merely “Good.” In February 2002 the Union of India issued an Office Memorandum raising the promotion benchmark to “Very Good,” and Departmental Promotion Committee (DPC) guidelines required assessment of the previous five years’ ACRs. The downgrading therefore materially affected the appellant’s promotional prospects.
A two-Judge Bench, while granting leave on 12-12-2006, noticed a conflict between the judgments in U.P. Jal Nigam v. Prabhat Chandra Jain (1996) 2 SCC 363 and Union of India v. Major Bahadur Singh (2006) 1 SCC 368 on whether such downgrading constitutes an “adverse remark” that must be communicated. The Bench referred the matter to a larger Bench, which now decides the appeal.
Legal Issues Presented
- Whether a downgrading of an ACR entry (e.g., from “Very Good” to “Good”) amounts to an “adverse remark” that must be communicated to the employee.
- Whether every entry—“poor,” “fair,” “average,” “good,” or “very good”—in the ACR of a public servant (other than military personnel) must be communicated within a reasonable period in order to satisfy the requirements of natural justice and Article 14 of the Constitution.
- Whether earlier decisions that limited communication of ACRs to only adverse or below-benchmark entries continue to be good law.
Arguments of the Parties
Appellant's Arguments
- Relied on U.P. Jal Nigam to contend that downgrading, though not explicitly termed “adverse,” has adverse civil consequences and therefore must be communicated.
- Submitted that non-communication deprived him of an opportunity to represent against the lower grading, violating principles of natural justice.
Respondents' (Union of India) Arguments
- Invoked Major Bahadur Singh, arguing that U.P. Jal Nigam was confined to employees of that corporation and did not lay down a general legal principle.
- Maintained that only formally “adverse” entries require communication and that “Good” is a positive grading not needing disclosure.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| U.P. Jal Nigam v. Prabhat Chandra Jain (1996) 2 SCC 363 | Downgrading from “Very Good” to “Good” may need reasons and, in some cases, communication. | Held to lay down a general proposition; not confined to Jal Nigam employees. |
| Union of India v. Major Bahadur Singh (2006) 1 SCC 368 | Attempted to confine Jal Nigam to its facts. | Distinguished and not followed; larger Bench disagreed with its narrow reading. |
| Dev Dutt v. Union of India (2008) 8 SCC 725 | Every ACR entry must be communicated within a reasonable time. | Expressly approved and adopted as correct law. |
| A.K. Kraipak v. Union of India (1969) 2 SCC 262 | Natural justice principles extend to administrative actions. | Cited to reinforce need for fairness in ACR communication. |
| Maneka Gandhi v. Union of India (1978) 1 SCC 248 | Arbitrariness violates Article 14. | Used to characterise non-communication of ACRs as arbitrary. |
| Union of India v. Tulsiram Patel (1985) 3 SCC 398 | Scope of natural justice in public service law. | Referred to in support of broader fairness obligations. |
| Canara Bank v. V.K. Awasthy (2005) 6 SCC 321 | Natural justice in employer-employee relations. | Considered while approving Dev Dutt. |
| State of Maharashtra v. Public Concern for Governance Trust (2007) 3 SCC 587 | Transparency and good governance. | Bolstered reasoning on openness in ACR process. |
| Abhijit Ghosh Dastidar v. Union of India (2009) 16 SCC 146 | Applied Dev Dutt; non-communication of “Good” entry violates Article 14. | Cited as subsequent affirmation of the communication rule. |
| Satya Narain Shukla v. Union of India (2006) 9 SCC 69 | Contrary view on need to communicate all ACR entries. | Declared not to lay down good law. |
| K.M. Mishra v. Central Bank of India (2008) 9 SCC 120 | Contrary view on ACR communication. | Also overruled as bad law. |
| T.K. Aryaveer v. Union of India (2003) 1 ATJ 130; A.B. Gupta v. Union of India (2005) 1 ATJ 509; Bahadur Singh v. Union of India (2003) 2 SCT 514 | Followed Jal Nigam in various High Courts/Tribunal decisions. | Noted to demonstrate existing judicial acceptance of the broader communication principle. |
Court's Reasoning and Analysis
The Court began by examining the perceived conflict between Jal Nigam and Major Bahadur Singh. It rejected the notion that Jal Nigam was limited to the employees of the U.P. Jal Nigam, holding that the case articulated a general rule of law.
Turning to Dev Dutt, the Bench reviewed paragraphs 17, 18, 22, 37 and 41, emphasising that:
- Non-communication of any ACR entry is arbitrary and violative of Article 14.
- Communication furthers employee improvement, allows meaningful representation, and promotes transparency.
- Even “outstanding” entries should be communicated to boost morale.
Finding these objectives compelling, the Court “completely agreed” with and “approved” the reasoning in Dev Dutt. Consequently, it declared earlier contrary decisions—including Satya Narain Shukla and K.M. Mishra—as not laying down good law.
The Bench held that every ACR entry—irrespective of its positivity or negativity—must be conveyed to the public servant within a reasonable time, together with an opportunity to seek review by an authority higher than the original evaluator.
Holding and Implications
HELD: Every entry (“poor,” “fair,” “average,” “good,” or “very good”) in the ACR of a public servant, other than military personnel, must be communicated within a reasonable period; decisions to the contrary are overruled. The appellant’s civil appeal is disposed of, noting that he has already been promoted, but he may seek retrospective promotion in light of this ruling. An intervention application was rejected.
Implications: The judgment standardises ACR communication across all civil, judicial, police and similar services, reinforcing transparency and natural-justice requirements. It sets a binding precedent for departmental promotion procedures and invalidates conflicting case law, compelling all public authorities to review their appraisal and promotion frameworks.
Order
1. While granting leave on 12-12-2006 (2013) 9 SCC 573, a two-Judge Bench (S.B Sinha and Markandey Katju, JJ.) felt that there was inconsistency in the decisions of this Court in U.P Jal Nigam v. Prabhat Chandra Jain (1996) 2 SCC 363, (1996) 33 ATC 217 and Union of India v. Major Bahadur Singh (2006) 1 SCC 368 and consequently, opined that the matter should be heard by a larger Bench. This is how the matter has come up for consideration before us.
2. The referral order dated 12-12-2006 (2013) 9 SCC 573 reads as follows:
“1. The appellant herein was appointed as Deputy Director of Training on or about 13-11-1992. He attended a training programme on Computer Applied Technology. He was sent on deputation on various occasions in 1997, 1998 and yet again in 2000. Indisputably, remarks in his annual confidential reports throughout had been ‘Outstanding’ or ‘Very good’. He, however, in two years i.e 2000-2001 and 2001-2002 obtained only ‘Good’ remark in his annual confidential report. The effect of such a downgrading falls for our consideration.
2. The Union of India issued a Office Memorandum on 8-2-2002 wherein the benchmark for promotion was directed to be ‘Very Good’ in terms of Clause 3.2 thereof. It is also not in dispute that guidelines for the Departmental Promotion Committees had been issued by the Union of India wherein, inter alia, it was directed as follows:
‘… 6.2.1 (b) The DPC should assess the suitability of the employees for promotion on the basis of their service records and with particular reference to the CRs for five preceding years irrespective of the qualifying service prescribed in the Service/Recruitment Rules. The “preceding five years” for the aforesaid purpose shall be decided as per the guidelines contained in the DoP&T OM No. 22011/9/98-Estt. (D) dated 8-9-1998, which prescribe the model calendar for DPC read with OM of even number, dated 16-6-2000. (If more than one CR have been written for a particular year, all the CRs for the relevant years shall be considered together as the CR for one year.)’
3. The question as to whether such a downgradation of annual confidential report would amount to adverse remark and thus it would be required to be communicated or not fell for consideration before this Court in U.P Jal Nigam v. Prabhat Chandra Jain (1996) 2 SCC 363, (1996) 33 ATC 217 in the following terms:
‘3. We need to explain these observations of the High Court. The Nigam has rules, whereunder an adverse entry is required to be communicated to the employee concerned, but not downgrading of an entry. It has been urged on behalf of the Nigam that when the nature of the entry does not reflect any adverseness that is not required to be communicated. As we view it the extreme illustration given by the High Court may reflect an adverse element compulsorily communicable, but 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. All that is required by the authority recording confidentials in the situation is to record reasons for such downgrading on the personal file of the officer concerned, and inform him of the change in the form of an advice. If the variation warranted be not permissible, then the very purpose of writing annual confidential reports would be frustrated. Having achieved an optimum level the employee on his part may slacken in his work, relaxing secure by his one-time achievement. This would be an undesirable situation. All the same the sting of adverseness must, in all events, not be reflected in such variations, as otherwise, they shall be communicated as such. It may be emphasised that even a positive confidential entry in a given case can perilously be adverse and to say that an adverse entry should always be qualitatively damaging may not be true. In the instant case we have seen the service record of the first respondent. No reason for the change is mentioned. The downgrading is reflected by comparison. This cannot sustain. Having explained in this manner the case of the first respondent and the system that should prevail in the Jal Nigam, we do not find any difficulty in accepting the ultimate result arrived at by the High Court.’
4. Several High Courts as also the Central Administrative Tribunal in their various judgments followed the decision of this Court in U.P Jal Nigam (1996) 2 SCC 363, (1996) 33 ATC 217, inter alia, to hold that in the event the said adverse remarks are not communicated causing deprivation to the employee to make an effective representation thereagainst, thus should be ignored. Reference may be made to T.K Aryaveer v. Union of India (2003) 1 ATJ 130, A.B Gupta v. Union of India (2005) 1 ATJ 509 and Bahadur Singh v. Union of India (2003) 2 SCT 514.
5. Our attention, however, has been drawn by the learned Additional Solicitor General appearing for the respondents to a recent decision of this Court in Union of India v. Major Bahadur Singh (2006) 1 SCC 368 wherein a Division Bench of this Court sought to distinguish U.P Jal Nigam (1996) 2 SCC 363, (1996) 33 ATC 217 stating as follows: (Major Bahadur Singh case (2006) 1 SCC 368)
‘8. As has been rightly submitted by the learned counsel for the appellants U.P Jal Nigam case (1996) 2 SCC 363, (1996) 33 ATC 217 has no universal application. The judgment itself shows that it was intended to be meant only for the employees of U.P Jal Nigam only.’
6. With utmost respect, we are of the opinion that the judgment in U.P Jal Nigam (1996) 2 SCC 363, (1996) 33 ATC 217 cannot be held to be applicable only to its own employees. It has laid down a proposition of law. Its applicability may depend upon the rules entirely in the field but by it cannot be said that no law has been laid down therein. We, therefore, are of the opinion that the matter should be heard by a larger Bench.”
3. Subsequent to the above two decisions, in Dev Dutt v. Union of India (2008) 8 SCC 725, this Court had an occasion to consider the question about the communication of the entry in the ACR of a public servant (other than military service). A two-Judge Bench (2008) 8 SCC 725 on elaborate and detailed consideration of the matter and also after taking into consideration the decision of this Court in U.P Jal Nigam (1996) 2 SCC 363, (1996) 33 ATC 217 and principles of natural justice exposited by this Court from time to time particularly in A.K Kraipak v. Union of India (1969) 2 SCC 262; Maneka Gandhi v. Union of India (1978) 1 SCC 248; Union of India v. Tulsiram Patel (1985) 3 SCC 398; Canara Bank v. V.K Awasthy (2005) 6 SCC 321 and State of Maharashtra v. Public Concern for Governance Trust (2007) 3 SCC 587 concluded that every entry in the ACR of a public servant must be communicated to him within a reasonable period whether it is poor, fair, average, good or very good entry. This is what this Court observed in paras 17 and 18 of the Report in Dev Dutt (2008) 8 SCC 725:
“17. In our opinion, 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, and it has been held by the Constitution Bench decision of this Court in Maneka Gandhi v. Union of India (1978) 1 SCC 248 that arbitrariness violates Article 14 of the Constitution.
18. Thus, 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 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.”
(emphasis in original)
4. Then in para 22 of the Report this Court in Dev Dutt case (2008) 8 SCC 725 made the following weighty observations:
“22. 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.”
5. In paras 37 and 41 of the Report this Court then observed as follows: (Dev Dutt case (2008) 8 SCC 725)
“37. 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 authority concerned, and the authority concerned 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. In our opinion, non-communication of entries in the annual confidential report of a public servant, whether he is in civil, judicial, police or any other service (other than the military), certainly has civil consequences because it may affect his chances for promotion or get other benefits (as already discussed above). Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution.”
6. We are in complete agreement with the view in Dev Dutt (2008) 8 SCC 725 particularly paras 17, 18, 22, 37 and 41 as quoted above. We approve the same.
7. A three-Judge Bench of this Court in Abhijit Ghosh Dastidar v. Union of India (2009) 16 SCC 146 followed Dev Dutt (2008) 8 SCC 725. In para 8 of the Report this Court with reference to the case under consideration held as under: (Abhijit Ghosh Dastidar case (2009) 16 SCC 146)
“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 ACR 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 for 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 725) 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.”
8. In our opinion, 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 that helps him in improving his work and give better results. Second and equally important, on being made aware of the entry in the ACR, the public servant may feel dissatisfied with the same. Communication of the entry enables him/her to make representation for upgradation of the remarks entered in the ACR. Third, communication of every entry in the ACR brings transparency in recording the remarks relating to a public servant and the system becomes more conforming to the principles of natural justice. We, accordingly, hold that every entry in ACR—poor, fair, average, good or very good—must be communicated to him/her within a reasonable period.
9. The decisions of this Court in Satya Narain Shukla v. Union of India (2006) 9 SCC 69 and K.M Mishra v. Central Bank of India (2008) 9 SCC 120 and the other decisions of this Court taking a contrary view are declared to be not laying down good law.
10. Insofar as the present case is concerned, we are informed that the appellant has already been promoted. In view thereof, nothing more is required to be done. The civil appeal is disposed of with no order as to costs. However, it will be open to the appellant to make a representation to the authorities concerned for retrospective promotion in view of the legal position stated by us. If such a representation is made by the appellant, the same shall be considered by the authorities concerned appropriately in accordance with law.
11. IA No. 3 of 2011 for intervention is rejected. It will be open to the applicant to pursue his legal remedy in accordance with law.
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