DATE OF JUDGEMENT :
12th May 2008
JUDGES :
Justice H.K. Sema, Justice Markandey Katju
PARTIES :
Dev Dutt (Appellant)
Union Of India & Ors. (Respondent)
SUBJECT
The following judgment is about a special leave appeal which was filed by Dev Dutt to counter the impugned judgment of the Gauhati High court of 2001. He had filed a written petition which was dismissed by the division bench. In his appeal, he has stated that he did not get a promotion because he was not informed about his employee performance entry, and it has led to the violation of Article 14. He mentioned that there has been a violation of the rules of natural justice.
OVERVIEW
The case is about a special leave appeal that was filed by a government official.
He contended that it was because of the non-communication of the Annual Confidential Report that he did not get promoted but his juniors did.
He claimed that this rule was against the principle of natural justice, and it took away from him, the opportunity to get promoted.
The court also stated that it violated the principal of natural justice along with Article 14 of the constitution.
The respondent claimed that according to the rules laid down by the Government of India only the adverse form of entry is supposed to be communicated to the employee.
The court held that this defense was not justified as the rule is still arbitrary and hence not valid.
The court further stated there should be proper communication regarding the entries so that the employees can improve on their performance and do not lose a chance of promotion.
The court also accepted the appeal and stated that the appellant must be informed about the entry and given a fair chance of representation if he wants one.
IMPORTANT PROVISIONS
Article 14 of the Constitution - this article provides for equality before the law or equal protection before the law. It states that everyone should be equal in the eyes of law and there shall be no form of discrimination on the grounds of religion or race or caste or sex or even the place of birth of an individual.
Principle of Natural Justice - it is a non-codified form of a principle that can vary with the circumstances. It is flexible and stands for providing fair treatment to everyone, especially by the authorities, while keeping the context of the situation in mind.
ISSUES
1. Was the rule violative of Article 14?
2. Was the rule in violation of natural justice?
3. Whether the appeal must be accepted and the appellant allowed to apply for representation?
ANALYSIS OF THE JUDGEMENT
The appellant (Dev Dutt) filed the appeal by special leave against the judgment of the Gauhati High Court whose division bench had dismissed his appeal, that had been filed before the judge. He was an executive engineer in the Service of the Border Roads Engineering Service and was eligible to be considered for promotion for the post of superintending engineer as he had completed five years as an executive engineer, and so his name had been included in the list of the candidates who were eligible for the promotion.
However, when the Departmental Promotion Committee had conducted a meeting, they concluded that the appellant was not eligible for promotion as he had received only ‘good’ in his entry in the past year as compared to ‘very good in the remaining four years. The appellant claimed that he had not been informed about the ‘good’ entry for the past year, and if there would have been communication regarding that entry then in that case he would have had a chance to make a representation to upgrade that entry and become eligible for promotion and it is because of this that he stated that the principles of natural justice had been violated in this case.
1. In this case, the counsel appearing for the respondents had submitted that under the rules which had been stated by the Office Memorandum which had been issued by the Ministry of Personnel/ Public Grievance and Pensions, it is only in the case of an adverse entry that communication has to be made to the concerned employee. to this, the court stated that there is no rule or instruction by the government which can stand as violative of Article 14 or any other provision which has been mentioned in the constitution as it is the constitution that is the highest law of the land. The court further stated that as per the memorandum, if the interpretation is that only adverse entries will have to be communicated to the concerned employees and not the other entries then in the opinion of the court it would become often arbitrary nature and hence illegal as it would be violated of Article 14. It was in the case of ‘Maneka Gandhi V. Union Of India & Anr.’ that the court had stated that arbitrariness of a rule will be violated of article 14 of the constitution. The court further mentioned that when an employee is not communicated about the entry in their Annual Confidential Report, he would be deprived of a chance of making a representation against the entry and praying for its up-gradation. This non-communication will also affect the chances of promotion of an employee and it would not be fair because the main object of writing this confidential report is to ensure that the public servant has an opportunity to improve their performance as had been stated in the case of ‘State of UP V. Yamuna Shankar Misra.’The court also stated that the respondent in their defense have mentioned the case of ‘U.P Jal Nigam V. Prabhat Chandra Jain’ But this decision does not talk about the details or how this grading can have a very serious impact on the chances of promotion of an individual. The honourable Supreme Court had another counter for one of the cases which were mentioned by the respondent counsel that was ‘Union Of India &Anr. V. S.K. Goel & Ors.’ by stating that this decision was only a two-judge bench decision and it cannot prevail over the seven-judge Constitution bench decision of the case of Maneka Gandhi.
2. The court stated that it should not only be in cases where there is a benchmark but in all cases that an entry should be communicated to the public servant otherwise, it will stand as being violative of the principle of fairness which is also the soul of natural justice. The court further stated that when we talk about the case at hand, the actions of the respondent’s by not communicating the entry to the appellant will stand as arbitrary and violative of natural justice in the opinion of the court and it is so because the entry which is mentioned will also operate as an adverse entry, as it will eliminate the chances that the employee holds of being promoted (if the benchmark requires for an upgraded entry). To further explain this point the court stated the example of the case of ‘A.K. Kraipak & Ors. V. Union Of India & Ors.’ where it was held that the concept of natural justice has evolved over the years as initially it only included two rules which were :
(a) No individual shall be a judge in their cause
(b) No decision shall be declared against a party without giving them a reasonable hearing.
And it was after this that more rules had come which included that even the quasi-judicial inquiries should be held in good faith and without any bias and they should not be arbitrary or unreasonable. This decision was also applied in the case of ‘K.I. Shephard & Ors. V. Union Of India & Ors.’ where it had been held that even the administrative acts should be following the principle of natural justice if they have civil consequences. The court also stated that to ensure fairness there must have been proper communication about the entry of the performance of the employee so that he had the opportunity to make a representation and pray for up-gradation which would have made him eligible for the promotion. And this non-communication will stand as unfair on the part of the respondent and hence violate the principle of natural justice.
3. The court stated that when it comes to the non-communication of the entries in the annual confidential report of a public servant irrespective of him or her being in a civil or judicial or police or any other service will have civil consequences as it can affect their chances for promotion or to obtain other benefits. They also stated that in the present case the single judge, as well as the division bench, had made a mistake in law and thus they decided to set aside their judgments. They mentioned that it is now that the appellant has retired from service but if in case his representation for up-gradation of the last entry is allowed then it can result in a benefit in his pension and so they directed that this entry should be communicated to the appellant and he should get a chance to make a representation against it and pray for its up-gradation, however, in violation it should be considered forthwith for the promotion purpose and in case he is promoted then he will get the benefits of the higher position. The court directed that this entry should be communicated to the appellant within a period of two months from the date of receipt of the copy of this judgment, and when it is communicated then the appellant may have the chance of representation within two months and this representation will be decided within two months. If the committee decides in his favor then he will get selected for the promotion. In their statement, the court mentioned that all entries in the annual confidential report of a public servant shall be communicated to them within a reasonable period so that they can make a representation for its up-gradation. They stated that it will be the correct legal position and no rule or government order which requires for non-communication of the entry or even prohibiting it will be applicable as it will be considered as arbitrary and violate if of Article 14 of the constitution.
CONCLUSION
The following case is very unique and in a way, it helps us in restoring the faith in our judicial system, as it shows that in no situation will the law allow any rule all provision to treat any citizen of the country unfairly. It was essential that the court took a stand on this issue and ensured that no public servant is suffering because there can be various issues as to why the entry in the annual confidential report could have come down.
For an instance, there can also be a possibility that an employee did not get the best entry even if their work was good enough because the superior might have asked them to do something wrong which they might have refused or there can also be an instance of either caste or communal prejudice or the superior could also be taking out vengeance on the employee and so many other possibilities where they could lose on a great opportunity for promotion and it would be unfair to them.
The provision of making a representation against the entry is also justified and essential as it would help the employees to prove their potential in case it was bring ignored by the superiors for some particular reason. This case has also helped us to understand that no order of provision is above the constitution and also that fairness and transparency should be a part of every administration and this state should be a model employer and needs to act fairly towards all its employees because it is only then that good governance can e established.
Click here to download the original copy of the judgement
