With much satisfaction it has to be remarked right at the outset that in a latest, landmark and laudable judgment by a two-Judge Bench of Apex Court titled Anil Kumar v Union of India and others in Civil Appeal No. 888 of 2019 (arising out of SLP (C) 32073 of 2016) and authored by Justice Dr Dhananjaya Y Chandrachud for himself and Justice Hemant Gupta delivered on January 21, 2019 very clearly and convincingly observed that no authority can claim a privilege not to comply with its judgment. Very rightly so! Who will respect Supreme Court if any authority is given the unfettered and untrammelled power not to comply with the Supreme Court judgment? Can any authority be ever given such power? Certainly not!
Needless to say, the Apex Court Bench made this extremely relevant observation as pointed above while allowing an appeal filed by an employee of the Council for Scientific and Industrial Research. Starting from the scratch, it is first and foremost pointed out in this noteworthy judgment while granting leave that, “The appellant was aggrieved by the rejection of his claim for financial upgradation by the Council for Scientific and Industrial Research (“CSIR”) with effect from 10 May 2011. He was also aggrieved by not being promoted to the post of Senior Controller of Administration/Senior Deputy Secretary in Pay Band-4 i.e. Rs. 37,400-67,000 with a grade pay of Rs. 8700 in respect of vacancies for 2013-2014 under the CSIR Recruitment & Promotion Rules for Administrative Staff, 1982.”
To be sure, it is then pointed out that, “He moved the Central Administrative Tribunal, Chandigarh. The Tribunal did not find any substance in his grievance for the reason that he did not fulfil the benchmark of “Very Good” for financial upgradation. The Tribunal was of the view that CSIR is an autonomous body and that the circulars issued by the Union of India would not ipso facto apply.”
As things stood, the Bench sought to make it clear that, “The grievance of the appellant was that the failure to communicate the Annual Confidential Reports in which he had failed to meet the benchmark violated the O.Ms issued by the Department of Personnel and Training. The Tribunal rejected that contention holding that since CSIR had adopted the requirement of conveying the ACRs from a particular date in the future, the decision could not be questioned.”
Simply put, the Bench then specifies that, “On the issue of promotion, it has been held that this involved a selection on the basis of performance in service and in the interview and since the Departmental Promotion Committee had graded the appellant as “good”, he was not considered for promotion. This view of the Central Administrative Tribunal was challenged before the High Court of Punjab and Haryana. By a judgment dated 13 July 2006, the writ petition filed by the Appellant was dismissed.”
As it turned out, the Apex Court Bench then spells out that, “The first grievance of the appellant was that he was entitled to financial upgradation under the MACP scheme adopted by CSIR. It is not in dispute that the benchmark prescribed was “Very Good” for financial upgradation to the grade pay of Rs. 7600/- and above. CSIR, by its letter dated 30 December 2013, notified the eligibility of the appellant for the grant of financial upgradation with effect from 10 May 2011.”
Going ahead, it is then pointed out that, “Similarly, by its circular dated 6 February 2014, CSIR issued an All India Final Seniority List of Common Cadre Officers as on 1 January 2014. The name of the Appellant stood at Serial No. 2 in the category of Deputy Secretary/Controller of Administration. On 9 May 2014, CSIR declared the result of the exercise conducted by the Screening Committee which met on 21 April 2014. The name of the appellant did not appear in the list of officers for financial upgradation from 10 May 2011.”
More to the point, it is then brought out that, “The ACRs of the appellant were below the benchmark required for certain years namely 2003-2004, 2008-2009 and 2009-2010. The gradings to the appellant on 9 July 2014 to which he submitted a representation and appeared for the interview for regular promotion for 2013-2014. The grievance is that the representation was not considered.”
What is more, it is then also brought out in this judgment that, “When the panel for the post of Senior Deputy Secretary/Senior Controller of Administration for 2013-2014 was notified, officers junior to the appellant were empanelled for promotion. The appellant was neither granted a financial upgradation nor was he promoted as a part of the exercise of regular promotion to the higher post. The High Court affirmed the view of the Tribunal and rejected the writ petition filed by the applicant.”
Be it noted, the Bench then while citing the relevant earlier decided cases observes that, “In Dev Dutt vs. Union of India & Ors, (2008) 8 SCC 725 a two Judge Bench of this Court held that fairness in public administration and transparency require that all entries in the Annual Confidential Reports of a public servant must be communicated within a reasonable period in order to enable the employee to make a representation for upgradation. The view of the Court was that non-communication of entries in the ACRs has civil consequences since it may affect the chances of the employee for promotion and other benefits. A failure to communicate would be arbitrary. This Court held that these directions would apply to employees of statutory authorities, public sector corporations and other instrumentalities of the State, in addition to government servants.”
Moving ahead, it is then pointed out by the Bench that, “A three Judge Bench of this Court has in Sukhdev Singh vs. Union of India & Ors. (2013) 9 SCC 566 affirmed the correctness of the view taken in Dev Dutt (supra) noting that an earlier three Judge Bench in Abhijit Ghosh Dastidar vs. Union of India & Ors. (2009) 16 SCC 146 had adopted the same principle. The three Judge Bench in Sukhdev Singh (supra), held thus:
“8. In our opinion, the view taken in Dev Dutt 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”.”
To put things in perspective, the Apex Court Bench then points out that, “In view of the above statement of law, both the Tribunal and the High Court were in error in coming to the conclusion that CSIR being an autonomous entity and having adopted the O.Ms of the Department of Personnel and Training with effect from a specified date, the appellant could not make a grievance of the non-communication of the ACRs for the relevant period. The failure to communicate the ACRs deprived the appellant of the opportunity to submit his representation in the matter of financial upgradation. Subsequently, the appellant was furnished with an opportunity to submit his representation before his case was taken up for regular promotion, but his representation was not considered.”
More importantly, the Bench then states that, “The appellant did not have the benefit of submitting his representation when the Screening Committee took up the case for financial upgradation. CSIR by reason of its autonomy may have certain administrative privileges. No authority can, however, claim a privilege not to comply with a judgment of this Court. Once the law was enunciated in Dev Dutt’s case (supra), all instrumentalities of the State were bound to follow this Court. CSIR was no exception.”
To say the least, the Bench then further states that, “The appellant has since retired from service on 30 September 2014. The grant of MACP benefit is not a matter of right and it is after the Screening Committee finds that the officer meets the benchmark that an upgradation can be granted. Hence, we are of the view that the appellant should be granted an opportunity, within a period of four weeks from today to submit his representation in respect of the ACRs for the concerned years where he did not fulfil the benchmark for financial upgradation.”
Continuing in same vein, the Bench then adds that, “Upon the submission of his representation, the respondents shall consider it and communicate the outcome to the appellant within a period of two months thereafter. Based on that decision, the case of the appellant for financial upgradation shall be considered afresh. In the event his ACRs for the relevant period are upgraded, the case for financial upgradation shall be determined within a period of three months thereafter.”
Finally and most importantly, the Bench then concludes by observing that, “We also direct that in the event that the ACRs for the relevant period are upgraded, the case of the appellant for promotion to the post of Senior Deputy Secretary/Controller of Administration shall be considered afresh by the Departmental Promotion Committee expeditiously. This exercise shall be carried out with reference to the date on which his junior in service came to be promoted. In the event that the case of the appellant is considered favourably, he would be entitled to all consequential benefits which flow from the financial upgradation and upon the grant of regular promotion to the post of Senior Deputy Secretary. The appeal is, accordingly, allowed and the judgment of the High Court shall stand set aside. Pending application(s), if any, shall stand disposed of. No order as to costs.”
All said and done, there is no valid reason why any person or authority dare to question what the Supreme Court has so rightly held in this landmark and laudable case! It is about time and all authorities must comply with it unconditionally and uniformly! No authority should ever cling to the false illusion that it can afford to claim privilege not to comply with the Supreme Court judgment.
Bluntly put: If they still refuse to even now comply, no one but they will themselves be responsible for facing the dire consequences which would follow from such refusal and then no one can save them! Do they want such unpalatable situation to arise and suffer the dire consequences? Certainly not! So, it is better for the authorities to wake up at the earliest right now and comply unconditionally with what the Supreme Court which is the top court of India has said so explicitly!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.