IMPORTANT POINT
Adverse APAR for any year under consideration for promotion must be communicated. Failure to do so vitiates denial of promotion.

JUDGMENT

Dr. Dhananjaya Y. Chandrachud, J

1. Leave granted.

2. The dispute in the present case arises from the appellant’s claim for promotion from Scale III to Scale IV in the services of the respondents. The year of promotion is 2014-2015.

3. The grievance of the appellant is that the entries in his Annual Performance Appraisal Report [“APAR”] for 2010-11 and 2011-12 were not disclosed, as a result of which he was unable to submit a representation at the material time. The appellant had the following gradings in the APARs:

(i) 2010-2011 “C”

(ii) 2011-2012 “B”

(iii) 2012-2013 “A”

(iv) 2013-2014 “A”

4. Relying on the two-judge Bench decision of this Court in Dev Dutt v Union of India, (2008) 8 SCC 725 and the subsequent decision of the three-judge Bench in Sukhdev Singh v Union of India, (2013) 9 SCC 566 the appellant contended that the failure to communicate the entries for 2010-11 and 2011-12 is contrary to the law laid down by this Court. Moreover, it has been submitted that on 14 May 2009 and 13 April 2010, the Union of India in the Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) had issued directions for implementation of the decision in Dev Dutt (supra). Thereafter, on 19 October 2012, the Union of India in the Ministry of Finance (Department of Financial Services) had drawn the attention of public sector insurance companies to the earlier Office Memorandum dated 14 May 2009 seeking immediate compliance. In this background, it has been submitted that the High Court of Judicature at Allahabad, which was moved by the appellant in proceedings under Article 226, was in error in coming to the conclusion that absent an adverse entry or an entry below the benchmark, the failure to communicate did not result in an actionable grievance. The High Court dismissed the writ petition by its judgment dated 6 October 2016 as well as the review petition by its judgment dated 17 January 2017. The present proceedings were instituted assailing the judgments of the High Court.

5. In the counter affidavit filed on behalf of the respondent, it has been stated that following a circular dated 18 March 2014, all public sector insurance companies have disclosed APARs since appraisal year 2013-14. It has been submitted that in consequence, there was no necessity to disclose the APARs to the appellant for the relevant years (2010-11 and 2011-12).

6. Adopting the line of submission which has been set out in the counter affidavit, Mr P P Malhotra, learned senior counsel appearing on behalf of the respondents, submitted that in terms of the Promotion Policy for Officers – 2006 [Annexure P-1], promotions from Scale III to Scale IV are based on (i) a written test; (ii) the work record; and (iii) seniority. It was submitted that in the present case the appellant failed to fulfill the cut-off for promotion of 68.98 marks, as disclosed to him on 9 September 2014.

7. Dr. Manish Singhvi, learned senior counsel appearing on behalf of the appellant, submitted that the defence which has been set out on behalf of the respondent has no substance since, following the law laid down by this Court in Dev Dutt (supra), all entries in the APARs are required to be communicated. Non-communication of the entries, in the present case, is a matter of prejudice since the communication dated 9 September 2014 indicates that, in appraising his work record, the appellant was given 40.15 marks out of a maximum of 45. This indicates that the uncommunicated entries for 2010-11 and 2011-12 have weighed against him.

8. While assessing the rival submissions, we must, at the outset, note that the law laid down by the two-judge Bench of this court in Dev Dutt (supra) has been reaffirmed by three judges in Sukhdev Singh (supra).

In Sukhdev Singh (supra), this Court held:

“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) 771] that every entry in ACR of a public servant must be communicat