C/SCA/13473/2013 CAV JUDGMENT DATED: 05/01/2026

Reserved On : 11/12/2025

Pronounced On : 05/01/2026

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CIVIL APPLICATION NO. 13473 of 2013

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE MAULIK J. SHELAT

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Approved for Reporting Yes No

✓

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SUSHEEL PATIL

Versus

INDIAN RAILWAY CATERING AND TOURISM CORPORATION LTD & ORS.

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Appearance:

MR GAUTAM JOSHI, SENIOR COUNSEL for MR AADITYA D BHATT(8580)

for the Petitioner(s) No. 1

CHANDNI S JOSHI(9490) for the Petitioner(s) No. 1

MR SUDHIR M MEHTA(2058) for the Respondent(s) No. 1,2,3,4

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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT

CAV JUDGMENT

1.Time and again, the Honourable Supreme Court of India, in its

various authoritative pronouncements, held that delay in

communicating the Annual Confidential Report (ACR) [now

termed as the Annual Performance Assessment Report

(APAR)] and/or non-communication of the ACR/APAR to an

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employee by the State and its instrumentalities would result

into the violation of the principles of natural justice with regard

to the career advancement of the employee, despite such law,

the Respondent herein, being an arm of the Union of India,

apparently has not followed such dictum, which resulted in the

denial of promotion to the petitioner.

2.The present petition is filed under Articles 14, 16 and 226 of the

Constitution of India, seeking the following reliefs:

“A) Your Lordships may be pleased to issue a writ of certiorari or

any other appropriate writ, order or direction, declaring the

requirement of benchmark of 21 out of 25 in the last 5 years

confidential reports for promotion from E-3 to E-4 grade, as

stipulated in the IRCTC Promotion Policy, 2012, as unreasonable,

arbitrary and discriminatory and thus violative of Articles 14 and 16

of the Constitution and striking down the same;

B) Your Lordships may be pleased to issue a writ of certiorari or

any other appropriate writ, order or direction, declaring

consideration, by the respondent authorities, of annual

Performance Appraisal Reports with rating below the benchmark

for promotion without prior communication of the APARs to deny

the petitioner of his right to be considered for promotion as contrary

to the law laid down by the Hon'ble Supreme Court of India,

contrary to the principles of natural justice, arbitrary and unfair and

thus violative of Articles 14 and 16 of the constitution and quashing

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and setting aside the same;

C) Your Lordships may be pleased to issue a writ of mandamus or

any other appropriate writ, order or direction directing the

respondent authorities to consider the petitioner for being promoted

from E-3 to E-4 grade in accordance with the provisions contained

in the IRCTC Promotion Rules, 2007;

D) Pending admission and final hearing of this petition, Your

Lordships may be pleased to restrain the respondent authorities

from making any promotion from E-3 to E-4 grade; and

E) Your Lordships may be pleased to pass any other and/or further

order, as deemed fit, in the interest of justice.”

3.THE SHORT FACTS, AS PER THE CASE OF THE

PETITIONER, READ THUS:

3.1.The petitioner was appointed in Grade E-2 of Junior

Management in the respondent-Indian Railway Catering and

Tourism Corporation Ltd. (hereinafter referred to as

“IRCTC”) in the year 2005. Later on, as per the prevailing

IRCTC Promotion Policy and Rules, 2007 (hereinafter referred

to as "the Rules, 2007") of the respondent, the petitioner was

promoted to Grade E-3 on 9th March 2009. At that point of

time, as per the said rules, minimum 3 years of regular service

in the lower grade requires to get promotion to the higher

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grade and only the suitability of the candidate judged from his

performance and the confidential reports but there was no

benchmark set with regard to the performance and the

confidential reports.

3.2.The petitioner, having completed 3 years of service in the said

grade, was eligible to be considered for further promotion to

Grade E-4 i.e. Middle Management. At that time, in the year

2012, the aforesaid Rules, 2007 came to be substituted by the

revised IRCTC Promotion Policy and Rules, 2012 (hereinafter

referred to as "the Rules, 2012"), which came into force with

effect from 1st September 2012.

3.3.As per the said rules, 2012, the benchmark has been introduced

to get promotion from Grade E-3 to E-4 apart from other

Grades. The benchmark fixed 21 out of 25 (last 5 years’ ACRs)

to consider for said promotion. The points for each APAR, as

per the said rules, are as follows:

CLASSIFICATION BENCHMARK

SCORE

Outstanding 5

Very Good 4

Good 3

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Average 2

Below Average 1

3.4.Prior to the aforesaid Rules, 2012, to get promotion from the

Grade E-2 to E-5, there was no benchmark fixed by the

respondent as not having been found in its Rules, 2007. As

stated above, as per the Rules, 2007, minimum 3 years of

regular service in the immediate lower grade shall be required

for a person to be eligible to get promotion to the next higher

grade. Whereas, as per the Rules, 2012, the respondent has

introduced for first time a benchmark to get it eligible for

promotion from Grade E-2 to E-5, apart from minimum 3

years of regular service in the immediate lower grade as

aforesaid.

3.5.It is remained undisputed fact amongst the parties that the

respondent had not served each year's APAR to the petitioner

at regular intervals in the last 5 years prior to 2013; rather, the

pleading suggests that on being sought for by the petitioner, the

respondent had communicated the APARs for the period of

2008-09, 2009-10, 2010-11 and 2011–12 in one lot to the

petitioner on 2nd April 2013. The petitioner’s APARs for the

years 2008–09 to 2011–12 were 'Very Good', 'Good',

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'Average/Fair', and 'Average', respectively; since the cumulative

score did not reach the benchmark of 21 fixed under the Rules,

2012, for promotion from Grade E-3 to E-4, the Petitioner was

deemed ineligible for promotion.

3.6.The petitioner appears to have submitted a representation on

22nd April 2013 for the upgradation of his APAR, wherein

also, he complained of not getting the APAR every year,

thereby, not have had a chance to improve his efficiency every

year. Such representation was rejected by the respondent on

20th September 2013 and the Departmental Promotional

Committee (DPC) met on the same date, had not considered

the case of the petitioner for promotion to Grade E-4, as not

met with the said benchmark.

3.7.Being aggrieved by the decision of the respondent in not

considering the petitioner for promotion from Grade E-3 to E-

4, he has approached this Court by way of the present petition.

4.SUBMISSIONS OF THE PETITIONER:

4.1.Mr. Gautam Joshi, learned Senior Counsel with Mr. Aaditya

Bhatt, learned advocate for the petitioner, would submit that

non-communication of the APAR by the respondent every year

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would be violative of the principles of natural justice and also

violative of Articles 14 and 16 of the Constitution of India. It is

submitted that due to late communication of the APARs, that

too by providing them in one lot of all previous relevant years’

APAR to the petitioner, is nothing but an arbitrary action on

the part of the respondent, which requires to be quashed and

set aside.

4.2.Mr. Joshi, learned Senior Counsel, would further submit that

as per the settled legal position of law and as per the Office

Memorandum dated 14th May 2009 issued by the Department

of Personnel and Training (DOPT), Government of India,

binding to the respondent, it was incumbent upon the

respondent to communicate the APAR regularly every year to

the petitioner, thereby, the petitioner would have a chance to

improve his working year on year, and could achieve higher

APAR in the next year. It is submitted that due to non-

communication of the APAR every year by the respondent it

resulted in a situation, whereby, the petitioner could not have

an opportunity to improve his efficiency to achieve higher

excellence in the service.

4.3.Mr. Joshi, learned Senior Counsel, would further submit that

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as per various decisions of the Honourable Apex Court, it was

a constitutional obligation upon the respondent to serve the

APAR every year to the petitioner and having not done so, it

violated the principles of natural justice. It is submitted that

due to the late receipt of the last few years’ APARs in one lot,

the petitioner could not effectively represent and had no chance

to get himself improved to achieve the highest APAR year after

year.

4.4.Mr. Joshi, learned Senior Counsel, would further submit that

the communication of the APAR every year to the petitioner is

having a laudable object, thereby, the petitioner not only gets a

chance to represent if dissatisfied with the APAR, but on

getting such remarks from his superior, also have a chance to

improve himself, which ultimately benefits him to get

promotion to a higher grade.

4.5.Mr. Joshi, learned Senior Counsel, would further submit that

as per Rules, 2007, there was no benchmark set out by the

respondent to get promotion to a higher grade by the

petitioner, inasmuch as, minimum 3 years of regular service in

the immediate lower grade shall be required for promotion to

the next higher grade. Whereas, due to the introduction of

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Rules, 2012, the respondent for the first time introduced the

benchmark, whereby, the petitioner needs to achieve 21 points

out of 25, to be counted from his last 5 years' APARs/ACRs. It

is submitted that when the respondent for the first time

introduced the benchmark in the year 2012, and having not

communicated the APARs every year in time, such benchmark

could have been considered prospectively rather than

retrospectively, inasmuch as, it could have been applied after 5

years of the introduction of Rules, 2012, subject to the

respondent regularly communicating the APARs to its

employees.

4.6.Mr. Joshi, learned Senior Counsel, would further submit that

the respondent communicating all APARs in one lot is nothing

but an empty formality; rather, it is illusory to send all APARs

in one lot, just to overcome the dictum of the Hon’ble Apex

Court.

4.7.Mr. Joshi, learned Senior Counsel, would submit that after the

year 2011–12, when the respondent communicated the APAR

every year to the petitioner and as such, APARs of the

petitioner from 2012–13 to 2021–22 would suggest that his

performance was either 'Very Good' or 'Outstanding', as the

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case may be. Had all required APARs been communicated by

the respondent to the petitioner in time prior to 2012,

considering his service record and performance after 2012, he

would have definitely secured at least minimum of the

benchmark, thereby got promoted to Grade E-4 from Grade E-

3.

4.8.Mr. Joshi, learned Senior Counsel, would lastly submit that by

no stretch of imagination, the respondent can be allowed to say

that it had communicated all APARs for the period 2008–09 to

2011–12 within reasonable time. It is submitted that there is no

explanation worth name forthcoming from the side of the

respondent as to why it had not communicated the relevant

APARs every year to the petitioner. It is further submitted that

due to the negligent act on the part of the respondent, the

petitioner is the sufferer who was deprived from getting

promotion at the relevant point of time, when the DPC met on

20th September 2013. It is further submitted that when the

respondent is at fault of not communicating the APARs every

year, the benchmark as set out in Rules, 2012, cannot be

pressed into service; rather, the case of the petitioner requires

to be considered for promotion to Grade E-4 from Grade E-3

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without applying the said benchmark.

4.9.To buttress his argument, Mr. Joshi, learned Senior Counsel

would rely upon the following decisions:

(i)Dev Dutt V/s. Union of India reported in (2008) 8 SCC

725;

(ii)Abhijit Ghosh Dastidar vs. Union of India and others

reported in (2009) 16 SCC 146;

(iii)Sukhdev Singh vs. Union of India and others reported in

(2013) 9 SCC 566;

(iv)Manoj Sitaram Lokhande vs. State of Gujarat, 2016 (0)

AIJEL-HC 236565.

4.10.Making the above submissions, Mr. Joshi, learned Senior

Counsel would request this Court to allow the present writ

petition.

SUBMISSIONS OF RESPONDENTS:

5.Per contra, Mr. Sudhir Mehta, learned advocate for the

respondents, would vehemently oppose the present petition as

follows:

5.1.There is no merit in the claim of the petitioner that he was not

communicated with the APARs by the respondent. It is

submitted that prior to the promotional exercise undertaken by

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the respondent in the year 2013, all previous years’ APARs

were communicated to the petitioner for the period 2008–09 to

2011–12 on 2nd April 2013. It is further submitted that for

reasons best known to the petitioner, no representation was

made by the petitioner against the APARs for the periods of

2008–09 and 2009–10. The representation for the period 2010–

11 and 2011–12 was duly considered by the respondent and the

same was rejected on 20th September 2013 and such decision

was communicated to the petitioner, which is not under

challenge.

5.2.The DPC, having met on 20th September 2013, found that the

petitioner had not secured the minimum benchmark to get it

eligible to be promoted from Grade E-3 to E-4, thereby, was

not granted promotion to the petitioner. It is a settled legal

position of law that the right to get promotion is not a

fundamental right; rather the right to be considered is only

fundamental right.

5.3.The respondent had followed the principles of natural justice

by communicating all previous years’ APARs to the petitioner,

thereby, he could submit his representation. The representation

of the petitioner was duly considered by the DPC, but having

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not found any substance, it was rejected. The petitioner, having

not cleared the minimum benchmark, i.e., 21 points, as per

Rules, 2012, was not granted promotion.

5.4.The decisions of the Honourable Apex Court and this Court

relied upon by the petitioner would not be applicable to the

facts of the present case, inasmuch as, in none of the decisions

of the Honourable Apex Court, any time limit has been set out,

whereby, the respondent was under a legal obligation to

communicate the APAR within stipulated time. The ratio of

the cited decisions is also not applicable to the facts of the

present case, as the petitioner was duly communicated with all

APARs. The petitioner chose to make representation only for

the period 2010–2011 and 2011–12; rather having accepted the

APARs for the period of 2008–09 and 2009–10, recorded by the

Reviewing Authority, later on cannot allow to complain for

late communication of APARs.

5.5.It is also not correct as submitted by the petitioner that his case

requires to be considered for promotion as per Rules, 2007

instead of Rules, 2012. The respondent is well within its rights

to change promotional rules and is also entitled to introduce a

benchmark which was not fixed in its earlier promotion rules.

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It is also settled legal position of law that when promotional

exercise is undertaken by employer, the rules prevailing at that

point of time would be applicable and not the rules prevailing

when the promotional post felt vacant.

5.6.The petitioner was offered to participate in the promotional

exercise undertaken by respondent in the year 2019, but he

chose to stay away from such exercise, citing reasons of the

pendency of this petition. The petitioner cannot be allowed to

take undue advantage of mere delay in communicating

APARs, as it would be a procedural irregularity and not any

illegality. The petitioner is unable to show any real prejudice

caused to him by such late communication; rather, the self-

appraisal note filled in by the petitioner himself, which was

submitted to the respondent would indicate that the petitioner

was well aware about remarks of his APARs every year.

5.7.Mr. Mehta, learned advocate for the respondents, would rely

upon the following decision:

(i)State of Himachal Pradesh and others V/s. Raj Kumar and

other reported in (2023) 3 SCC 773.

(ii)Hardev Singh V/s. Union of India and others reported in

(2011) 10 SCC 121.

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5.8.Making the above submissions, Mr. Mehta, learned advocate

for the respondents, would request this Court to reject the

present writ petition.

6.No other or further submissions are being made by any of the

learned advocates appearing for the parties.

POINT FOR DETERMINATION:

7.Having heard learned advocates of both sides, and having

perused the pleadings of the parties, following issue germen for

my consideration.

(i)Whether, in the facts and circumstances of the case, the

inordinate delay by the Respondent in communicating the

relevant years' APARs to the Petitioner, and the sending of

such APARs in one lot, would amount to unfair action

violating the principles of natural justice, thereby causing

prejudice to the Petitioner’s eligibility for promotion from

Grade E-3 to E-4 ?

ANALYSIS

8.The facts which are observed hereinabove are not in dispute.

The promotion Rules, 2007 of the respondent, whereby, the

petitioner secured his first promotion from Grade E-2 to E-3 -

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Junior Management on the basis of serving minimum 3 years in

Grade E-2. There was no benchmark fixed in the Rules, 2007 to

get higher promotion from Grade E-2 to E-8. The said position

was materially changed by the respondent in the year 2012

when respondent for the first time introduced the benchmarks

in the Rules, 2012, which came into force with effect from 1st

September 2012. As per the Rules, 2012, apart from minimum

3 years of service in a particular grade/post, the employee

concerned needs to secure the benchmark as fixed in the Rule

11 of the Rules, 2012. The counting of the benchmark is based

on the points for each CR’s-APAR’s of the last 5 years.

8.1.The relevant Rules 11 and 18 of the Rules, 2012, read as under:

“(11). PROMOTION FROM E2 TO E5 LEVEL

11.1Promotion from E-2 to E-5 level will be made on

the basis of performance and confidential reports.

11.2A person will be eligible for being considered for

promotion to the next higher grade on completion of 3

years regular service.

11.3A selection committee comprising of GGM level

officers will be nominated out of which at least one

officer should be from HR department and one from the

concerned department. The approving authority is MD.

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For E-2 to E3 the benchmark for promotion with regard to

record of service is as follows:

Year in E2

grade

Benchmark

3 12

4 15

5 17

For E-3 to E-4 the benchmark is 21 out of 25 (last 5

years CR’s)

For E-4 to E-5 the benchmark will be 13 out of 15 (last

3 years CR’s)

(18)Benchmark – for the purpose of benchmark, the

points for each CR’s will be given as follows:

a)Outstanding-5

b)Very Good-4

c)Good-3

d)Average-2

e)and below Average-1”

(emphasis supplied)

Undisputedly, the petitioner had not secured minimum

benchmark of 21 points as cumulative score of his last 5 years'

ACRs - APARs prior to 2013 was less than 21, i.e., the

benchmark fixed by the respondent as per said the Rules, 2012,

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to get it eligible for promotion from Grade E-3 to E-4. So, his

case was not considered by the DPC for promotion.

8.2.As observed above, prior to the DPC meeting, on the request

made by the petitioner, previous years APARs for the period of

2008–09 to 2011–12 were provided by the respondent to the

petitioner, albeit in one lot. The petitioner made representation

to respondent for entry made in the APARs for year 2010-11

and 2011-12, but said representation was rejected.

8.3.It also requires to take note of the undisputed fact that as per

the Office Memorandum dated 14th May 2009 issued by the

Department of Personnel and Training (DOPT), Government

of India, within reasonable time, respondent was supposed to

communicate APAR to the petitioner. As can be seen from the

pleadings of the parties, at relevant point of time, respondent

had not adhered to said binding circular of the Government,

inasmuch as communicated all APARs in question to the

petitioner in one lot.

9.Thus, in view of the aforesaid facts and circumstances, even

though the petitioner was communicated the previous years'

APARs by the respondent and his representation was rejected

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prior to the DPC meeting, the question still remains to answer,

as to whether it can said that the respondent observed the

principles of natural justice and acted in a fair manner when it

communicated all relevant previous years APARs to the

petitioner in one lot.

10.To appreciate the controversy germane to the matter and to

satisfactorily decide the point for determination, certain

judicial precedents on the subject need to be taken into

account.

10.1.In the case of Dev Dutt (supra), the Honourable Apex Court

laid down the law that it was a legal obligation on the part of

the State and its instrumentality to communicate all

ACRs/APARs to its employee irrespective whether it adverse

or not. It held that the purpose of communication of ACRs

would be twofold: (i). The communication of the ACR to know

about the assessment of the work and conduct by his superior,

which would enable the employee to improve his work in the

future, (ii). The employee would have an opportunity of

making a representation against the entry made in the ACR if

he feels it is unjustified, thereby, to pray for its upgradation. It

has been so observed and held that the communication of

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ACRs to the employee is fairness in action on the part of the

State, which is the soul of natural justice.

10.2.The relevant observations of the Honourable Apex Court in

the case of Dev Dutt (supra) read thus:

“12. It has been held in Maneka Gandhi v. Union of

India [(1978) 1 SCC 248 : AIR 1978 SC 597] that

arbitrariness violates Article 14 of the

Constitution. In our opinion, the non-communication of

an entry in the ACR of a public servant is arbitrary

because it deprives the employee concerned from

making a representation against it and praying for its

upgradation. 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. v. Yamuna Shanker Misra [(1997) 4 SCC 7 :

1997 SCC (L&S) 903] . Hence such non-

communication is, in our opinion, arbitrary and

hence violative of Article 14 of the Constitution.

13. In our opinion, every entry (and not merely a

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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) must be

communicated to him, within a reasonable period,

and it makes no difference whether there is a

benchmark or not. Even if there is no benchmark,

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.

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

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India [(1978) 1 SCC 248 : AIR 1978 SC 597] 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 .

24. 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 .

26. 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. In Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar

Pant [(2001) 1 SCC 182 : 2001 SCC (L&S) 189 : AIR 2001

SC 24] this Court held (AIR vide para 2): (SCC p. 188)

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“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.”

(emphasis supplied)

30. In Union of India v. Tulsiram Patel [(1985) 3 SCC

398 : 1985 SCC (L&S) 672 : AIR 1985 SC 1416] (AIR vide

para 97) a Constitution Bench of this Court referred to

with approval the following observations of Ormrod, L.J.

in Norwest Holst Ltd. v. Secy. of State for Trade

[(1978) 3 WLR 73 : (1978) 3 All ER 280 : 1978 Ch 201

(CA)] : (All ER p. 295a-b)

“The House of Lords and this Court have repeatedly

emphasised that the ordinary principles of natural justice

must be kept flexible and must be adapted to the

circumstances prevailing in any particular case.”

(emphasis supplied)

31. 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?

32. In Swadeshi Cotton Mills v. Union of India

[(1981) 1 SCC 664 : AIR 1981 SC 818] this Court

following the decision in Mohinder Singh Gill v. Chief

Election Commr. [(1978) 1 SCC 405 : AIR 1978 SC 851]

held that the soul of the rule (natural justice) is

fair play in action.

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35. 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.

36. 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

upgradation. 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 .

(emphasis supplied)

10.3.The aforesaid decision in the case of Dev Dutt (supra) is

confirmed by the Full Bench of the Honourable Apex Court in

the case of Sukhdev Singh (supra), wherein it was held thus:

“8. In our opinion, the view taken in Dev Dutt [Dev Dutt

v. Union of India, (2008) 8 SCC 725 : (2008) 2 SCC (L&S)

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771] 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.”

(emphasis supplied)

10.4.Prior thereto, in the past also, the Honourable Apex Court in

terms, has criticized the action of the State when found that

there was an inordinate delay in communicating the ACRs to

its employee, by observing that it lost its significance if there is

an inordinate delay made in communication of the ACR to the

employee. It went on to say that it frustrates right of the

employee to make effective representation.

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10.5.In the case of State of Haryana vs. P.C. Wadhwa reported in

(1987) 2 SCC 602, it was observed as under:

“14. The whole object of the making and

communication of adverse remarks is to give to

the officer concerned an opportunity to improve

his performances, conduct or character, as the

case may be. The adverse remarks should not be

understood in terms of punishment, but really it

should be taken as an advice to the officer

concerned, so that he can act in accordance with

the advice and improve his service career. The

whole object of the making of adverse remarks

would be lost if they are communicated to the

officer concerned after an inordinate delay. In the

instant case, it was communicated to the

respondent after twenty-seven months. It is true

that the provisions of Rules 5, 6, 6-A and 7 are directory

and not mandatory, but that does not mean that the

directory provisions need not be complied with even

substantially. Such provisions may not be complied with

strictly, and substantial compliance will be sufficient.

But, where compliance after an inordinate delay

would be against the spirit and object of the

directory provision, such compliance would not be

substantial compliance. In the instant case, while the

provisions of Rules 5, 6, 6-A and 7 require that

everything including the communication of the adverse

remarks should be completed within a period of seven

months, this period cannot be stretched to twenty-seven

months, simply because these Rules are directory,

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without serving any purpose consistent with the spirit

and objectives of these Rules. We need not, however,

dilate upon the question anymore and consider whether

on the ground of inordinate and unreasonable delay, the

adverse remarks against the respondent should be

struck down or not, and suffice it to say that we do

not approve of the inordinate delay made in

communicating the adverse remarks to the

respondent.”

(Emphasis supplied)

10.6.Likewise, in the case of Baidyanath Mahapatra vs. State of

Orissa and another reported in (1989) 4 SCC 664, noticing the

fact that adverse entries for several years were communicated

in a lot to the employee by the State (like case on hand), the

Honourable Apex Court observed that the object of

communicating entries is defeated by such action of the State.

It has been so held that an adverse entry awarded to a

government servant must be communicated to him within a

reasonable period to afford him opportunity to improve his

working and conduct and also to make representation in the

event he considered it unjustified. But such belated

communication of entries in one lot is a denial of reasonable

opportunity to the government servant to improve his

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performance; rather, it would be impossible for him to make

effective representation against adverse entries having been

received after an inordinate delay. The pertinent observations

read thus:

“6. The adverse entries for the years 1969-

1970, 1970-1971, 1972-1973 and 1975-1976

were communicated in a lot to the appellant in

1978, although under the instructions issued by the

State Government the adverse entries must be

communicated by December of each year. The

purpose of communicating adverse entries to the

government servant is to inform him regarding his

deficiency in work and conduct and to afford him an

opportunity to make, amend, and improve his work

and further if the entries are not justified the

communication affords him an opportunity to make

representation. If the adverse remarks awarded

to a government servant are communicated to

him after several years, the object of

communicating entries is defeated. It is

therefore imperative that the adverse entries

awarded to a government servant must be

communicated to him within a reasonable

period to afford him opportunity to improve his

work and conduct and also to make

representation in the event of the entry being

unjustified. In the instant case, adverse entries

relating to a number of years were communicated to

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the appellant in one lot under a letter dated 27-2-

1978 contrary to the instructions issued by the State

Government as contained in Circular No. 29 dated 19-

2-1953. Belated communication of the entries

resulted in denial of reasonable opportunity to

the appellant to improve his performance.

Further since adverse remarks for several years

were communicated with inordinate delay it

was impossible for the appellant to make an

effective representation against the same. The

appellant's representation against the aforesaid

entries was rejected on 12-3-1981 on the ground that

the representation was barred by time. Since the

communication of the adverse entries was itself

highly belated the representation against those

adverse remarks should have been considered on

merits and the same could not be rejected on the

alleged ground of delay as the Government itself was

guilty of inordinate delay in communicating the

adverse remarks to the appellant.”

(emphasis supplied)

11.Having considered the aforesaid case law, the principle deduced

from their ratios is that the action of the State towards its

employee must be just and fair, and whenever there is unfair

action on the part of the State or its instrumentality observed

by the Court, the same would be considered in violation of the

principles of natural justice. In such circumstances, the action

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requires to be struck down. It is also held that the rule of

principles of natural justice are flexible and it would be the

duty of the Court to see in each case as to whether the rules of

natural justice have been observed, inasmuch as, whether the

authorities acted fairly or not. As held above, the purpose of

communication of ACRs/APARs every year within reasonable

time to a public servant is to help him to work harder and

achieve more, which helps him in improving the work and to

get better results. The purpose of communicating the APARs

would get frustrates if all APARs are communicated in one lot

to a public servant as by doing so, neither the public servant

had an opportunity to effectively make his representation due

to unreasonable delay in getting such APARs, nor had a

chance to improve his work, thereby not helping him to get it

consider for promotion when not secured minimum

benchmark. Whenever, it has been observed that the State or

its instrumentality acted in unfair manner, i.e., it communicates

all relevant previous years’ APARs in one lot to its employee,

the whole object of making the entry in the APARs would be

lost due to inordinate delay made in its communication. Such

an action on the part of the State or its instrumentality cannot

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be approved or encouraged by this Court as it is not fair by any

means.

12.Now, taking note of the aforesaid undisputed facts of the

present case that the respondent had also communicated all

APARs for the period of 2008–09 to 2011–12 in one lot to the

petitioner only on 2nd April 2013, thereby, it frustrated the

object and purpose of communicating the APARs to the

petitioner. This Court cannot oblivious of the fact that

aforesaid communication of all APARs in one lot cannot by

any stretch of imagination considered as communicated by the

respondent within reasonable time. This Court cannot

countenance the submissions of the respondents that mere

delay in communicating APARs to the petitioner would not

prejudice his right to be considered for promotion. It cannot be

termed as mere irregularity as portrayed by the respondent. At

the cost of repetition, the object and purpose of communicating

the APAR regularly each year to the petitioner was not only to

give an opportunity to submit his representation if aggrieved by

the entry made in the APAR, but also to give him a chance to

improve himself in his service to achieve higher excellence,

which ultimately could have benefited him to secure the

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minimum benchmark as set out by the respondent when it

introduced Rules, 2012. It also brings transparency in the

recording the remarks in APARs. All these would lead to

observe and fulfil the principles of natural justice. Even, the

inordinate delay in communicating the APARs to the

petitioner would also frustrate his right to effectively submit his

representation. This amounts to violation of the principles of

natural justice as the aforesaid act of the respondent is highly

unjustified and unfair to the petitioner.

13.Furthermore, all previous years' APARs were communicated to

the petitioner by the respondent on a request being made by the

petitioner and its decision taken the day on which by the DPC

met for promotion. It can also be gainsaid that the appraisal

filled in by the petitioner would give him an idea about the

entry to be made in the APAR every year. In my view, unless

and until, the petitioner got the APAR every year within

reasonable time from the respondent, he had no chance to get a

clear picture about his work assessed by his superior and

simultaneously had no opportunity to improve his standard of

working to achieve his optimum standard.

14.It has been pointed out during the course of arguments that in

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subsequent years from 2012–13 onwards until 2021–22, on

getting the APAR every year from the respondent, the

petitioner not only improved his standards but achieved either

'Very Good' or 'Outstanding' entries in his APARs for the said

years’. This itself shows that on getting the APAR every year,

the petitioner was made aware about his work and assessment

by his superior, thereby he achieved the excellence in his

service. The said fact cannot be overlooked by this Court.

15.There is no cavil that rules prevailing at the time of the

promotional exercise undertaken by the employer require to be

taken note of, and not those prevailed at the time the

promotional post fell vacant. [See: Raj Kumar (supra)]. It is

also undisputed position of law that right to consider for the

promotion is fundamental right and not to get promotion. [See:

Hardev Singh (supra)]. But at the same time, when the action of

the respondent is found arbitrary, violative of Article 14 the

Constitution of India, and so also against the principles of

natural justice as its unfair, whereby, due to such an unfair

action of the respondent, the right to be considered for

promotion of the petitioner gets violated as aforesaid, such an

arbitrary and unfair action on the part of the respondents

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requires to be struck down by this Court.

16.It is trite that whenever this Court found the action of the State

is arbitrary, violative of Article 14 of the Constitution of India,

or against the principles of natural justice, such an action of the

State requires to be interfered by this Court.

17.Having considered the aforesaid facts and circumstances of the

case and applying the ratios of the aforesaid decisions to the

facts of the present case, I am of the view that the action of the

respondent in not communicating previous years' APARs

within a reasonable time to the petitioner prior to 2013 is

nothing but an unfair action on its part, which is violative of

the principles of natural justice. There is no justifiable reason

forthcoming from the side of the respondent in not

communicating the APARs within reasonable time, this

amounts to arbitrary action, which is violative of Article 14 of

the Constitution of India. As such, right of the petitioner either

to effectively made representation or to improve his standards

got severally affected due to high handedness of the respondent

by belatedly communicated the APARs. Thus, in view of the

aforesaid, the action of the respondent impugned in this

petition is hereby struck down.

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CONCLUSION:

18.The upshot of the aforesaid observations, discussions and

reasons would lead to the following inescapable conclusion:

18.1.The respondent’s inordinate delay in communicating the

APARs for the years 2008–09 to 2011–12 in one lot to the

petitioner is unjust, unfair, unreasonable, and unsustainable in

law.

18.2.Since there was an inordinate delay on the part of the

respondent in communicating the APARs to the petitioner as

aforesaid, it would be violative of the principles of natural

justice and so also Articles 14 of the Constitution of India as

due to such inordinate delay and sending all the APARs in one

lot, the petitioner could neither had a chance to improve his

working to achieve optimum standard nor effectively

represented against the remarks made in the APARs.

18.3.The Respondent alone should be blamed for not

communicating the APARs to

the Petitioner within a reasonable time; thereby, his right to be

considered for promotion to Grade E-4, which is his

fundamental right, was not only frustrated but violated.

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18.4.Due to the Respondent's failure to communicate the

APARs each year within a reasonable time, the Petitioner

should not be made to suffer; rather, it is incumbent upon

the Respondent to consider the Petitioner’s case for promotion

without taking into account the benchmark fixed under Rule

11 read with Rule 18 of the Rules, 2012.

19.Thus, in view of the aforesaid conclusion, the respondent is

hereby directed to hold meeting of the DPC within one month

from today to consider the case of the petitioner for promotion

from Grade E-3 to E-4 without taking into account the

benchmark as per the Rules, 2012. Nonetheless, other criteria

which requires to be taken into consideration as per Rules,

2012 to consider the case of the petitioner for promotion may

be taken note by the DPC.

20.If the petitioner is found eligible for promotion from Grade E-3

to E-4, an appropriate order shall be passed by the competent

authority of the respondent. Such promotion shall be given

effect from the date on which his junior was promoted, albeit

without any monetary benefits; however, all notional benefits,

including continuity of service in the promotional post, shall

be extended by the respondent.

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21.In view of the foregoing conclusion, the present writ petition is

allowed. Rule is made absolute, to the aforesaid extent. There

shall be no order as to costs. Direct Service is permitted.

(MAULIK J. SHELAT, J)

NILESH

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