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CASE NO.: Appeal (civil)  2717 of 2007

PETITIONER: Union of India & Anr

RESPONDENT: A.K. Narula

DATE OF JUDGMENT: 18/05/2007

BENCH: CJI K G Balakrishnan & R V Raveendran

JUDGMENT: J U D G M E N T [Arising out of SLP (C) No.20719/2005]

R.V. RAVEENDRAN, J.

       Leave granted.

       Union of India has filed this appeal by special leave against the  judgment and order dated 27.5.2005 of the Punjab & Haryana High Court in  Civil W.P. No.4455/2004.  

2.      Respondent was appointed as Deputy Superintendent of Police in the  Central Reserve Police Force (CRPF for short) on 1.12.1971. He was  promoted as Assistant Commandant on 23.7.1983. Promotion from the post  of Assistant Commandant to the next higher post of Second-in-Command is  on the basis of selection.  

3.      The O.M. dated 10.3.1989 issued by the Ministry of Personnel, Public  Grievances and Pension laid down the procedure of selection where the  Recruitment Rules required promotions to be made by selection. It provided  that where vacancies to be filled are more than four, the number of officers  to be considered by the Departmental Promotion Committee (’DPC’ for  short) shall be three times the number of vacancies. It authorized the DPC to  decide its own method and procedure for objective assessment of the  suitability of the candidates. It excluded interviews, unless specifically  provided for in the relevant recruitment Rules and directed that Confidential  Reports (CRs) were to be the basic inputs for assessment. The O.M. required  the DPC to follow the procedure laid down therein to ensure that the  evaluation of the CRs was fair, just and non-discriminatory. A summary of  the relevant portions of the procedure laid down in the OM is given below:  

(i)     Suitability should be assessed on the basis of service record,  with particular reference to CRs for five preceding years. CRs.  of equal number of years should be considered in respect of all  officers.

(ii)    DPC should not be guided merely by the overall grading that  may be recorded in the CRs but should make its own  assessment on the basis of entries made in the CRs. If the  reviewing authority or the accepting authority had overruled the  reporting authority or the reviewing authority as the case may  be, the remarks of the latter authority should be taken as the  final remarks for purposes of assessment provided it is apparent  from the relevant entries that the higher authority had come to a  different assessment consciously after due application of mind.  If the remarks of the reporting authority, reviewing authority  and accepting authority are complementary to each other, and

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one does not have the effect of overruling the other, then final  assessment should be made by the DPC, by reading the remarks  together.

(iii)   DPC should give an overall grading to each officer whose CRs  are assessed, as outstanding, very good, good, average or unfit.  The panel of promotion should be prepared by the DPC based  on the overall grading assigned to each of the candidates  considered by the DPC. Officers graded as ’outstanding’ would  rank en bloc senior to those who are graded as ’very good’ and  officers graded as ’very good’ would rank en bloc senior to  those who are graded as ’good’ and placed in the select panel  accordingly. Officers with the same grading would maintain  their inter se seniority in the feeder post. Appointments from  the panel should be made in the order of names appearing in the  panel.

(iv)    For promotion to posts which are in the level of Rs.3700-5000  and above, the benchmark grade should be "very good". For  promotions to Group ’A’ posts carrying  lesser scales of pay, the  benchmark grade should be "good".  

4.      A Departmental Promotion Committee (’DPC’ for short) was  convened to fill up 48 vacancies of Second-in-Command on 13.6.1990. The  DPC considered the CRs of 144 eligible Assistant Commandants.  The  benchmark for promotion to the rank of Second-in-Command was ’very  good’. As per the parameters adopted by the DPC held on 13.6.1990 on the  basis of their prevailing instructions, a candidate should have four ’very  good’ reports of ACRs out of last 5 ACRs including the ACR for the latest  year and should have no adverse remarks in CRs for the other years under  consideration for securing the benchmark of ’very good’.  Out of 148 officers  considered, DPC rated 39 officers as ’very good’ and 80 officers as ’good’.  After due deliberations, the DPC recommended that the 39 officers who had  secured the benchmark grade of  ’very good’ should be empanelled for  promotion. It also recommended that an additional nine senior-most  Assistant Commandants from those who were graded as ’good’ be  empanelled for promotion to the rank of Second-in-Command so that 48  vacancies could be filled. The DPC further empanelled the next ten senior- most Assistant Commandants graded as ’good’ for promotion against 10  anticipated vacancies.

5.      The respondent had three ratings of ’good’ for the years 1985-86,  1987-88 and 1988-89 and two ratings of ’very good’ for the years 1986-87  and 1989-90. The DPC, therefore, gave the overall rating of ’good’ to the  respondent. As only 19 officers were needed from the list of officers with  ’good’ rating to fill the existing as well as anticipated vacancies, only the first  nineteen in the list of officers with the rating ’good’ were empanelled and  promoted. The respondent, though rated ’good’, was not empanelled for  promotion, as his name did not figure in the first nineteen, having regard to  the inter-se-seniority among those who secured the overall rating of ’good’.  

6.      Feeling aggrieved, the respondent filed W.P. No.12316 of 1990  praying for a direction to the appellants herein to include his name in the list  of officers approved for being appointed as Second-in-Command. The  respondent contended that his service record was similar to that of R. S.  Virk, another Assistant Commandant, who was promoted. It was contended  that both had secured ’very good’ for three years and ’good’ for two years,  during the five years under consideration (1985-86, 1986-87, 1987-88, 1988- 89 and 1989-90); that the DPC upgraded the rating of R.S. Virk for the year  1988-89 from ’good’ to ’very good’ and, consequently, gave him the overall  rating of ’very good’; that in respect of the year 1987-88, his case was similar  to that of R.S.Virk for 1988-89, and therefore his rating for 1987-88 ought to  have been upgraded from ’good’ to ’very good’ and that if it had been done,  he would have also got the overall rating of ’very good’ instead of ’good’,

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thereby becoming entitled to be placed in the block of ’very good’ candidates  selected for promotion.  

7.      By order dated 11.2.1992, a learned Single Judge accepted the  Respondent’s contention and allowed the writ petition holding that the DPC  having modulated the rating of R.S. Virk from ’good’ to ’very good’, failure  to do so in the case of respondent in similar circumstances would amount to  unfair and hostile discrimination. He also held that the appellants failed to  prove that those who were promoted had a better service record than  respondent. He, however, noted that as the respondent had been promoted as  Second-in-Command (during the pendency of the writ petition), all that  survived for consideration was whether respondent was entitled to be  promoted from an earlier date. He directed the appellants to include the  name of the respondent in the approved list of Assistant Commandants for  appointment to the rank of Second-in-Command from the date when anyone   junior to him was promoted as Second-in-Command (in pursuance of the  selection by the DPC on 13.6.1990), with all consequential benefits.  

8.      The said judgment dated 11.2.1992 was challenged by the appellants  herein in LPA No.586 of 1992. The Division Bench found that in the case of  R. S. Virk (who was senior to respondent in the feeder post) for the year  1988-89, the accepting authority had rated him as ’good’, but DPC had  upgraded the rating as ’very good’ on the ground that the reporting authority  and the reviewing authority had rated him as ’very good’, and the accepting  authority had failed to record any reason for downgrading him to ’good’. The  Division Bench found that in the case of Respondent for the year 1987-88,  the reviewing authority had graded him as ’very good’ whereas the accepting  authority had graded him as ’good’ without assigning any reason. The  Division Bench was of the view that no plausible explanation was disclosed  for applying different yardsticks to R.S. Virk and Respondent, that  application of a different yardstick to Respondent would amount to unfair  treatment, and that if the same yardstick applied in the case of R S Virk, had  been applied to Respondent, the DPC would have rated the Respondent also  as ’very good’ instead of ’good’. The Division Bench, however, felt that the  learned Single Judge ought not to have issued a direction to include the  name of Respondent in the approved list (and that too from the date when a  person junior to him was promoted) and ought to have left it to DPC to  reconsider the matter. The Division Bench, therefore, allowed the appeal in  part by judgment dated 12.7.2001, set aside the order of the learned Single  Judge and directed the DPC to reconsider the respondent’s case, keeping in  view the observations made in the said judgment while adjudging his  suitability. The Division Bench also observed that if on reconsideration the  respondent was found suitable, he shall be promoted with retrospective  effect from the date on which R.S. Virk was promoted as Second-in- Command, and should be given all consequential benefits.

9.      Pursuant to the decision of the Division Bench, a review DPC  was  convened on 4.12.2003. It reconsidered the case of the respondent. It held  that there was no ground to upgrade his rating for 1987-88 from ’good’ to  ’very good’. Consequently, the overall rating of Respondent by the DPC  remained ’good’ and DPC did not recommend him for promotion with  respect to the DPC dated 13.6.1990. We extract below the reasoning given  by the review DPC:

"In view of the observations made by the Hon’ble Court, the ACRs for the  period from 1.4.1985 to 31.3.1990 in respect of Shri A.K. Narula and Shri  R.S. Virk have been duly scrutinized by the DPC. Scrutiny of records  reveals that ACR of Shri A.K. Narula for the year 1987-88 is in two parts.  The first part is for 6 months from 1.4.1987 to 26.9.1987 in which he was  graded "Good" by Reporting Officer, "Very Good" by Reviewing Officer  and "Good" by Accepting Officer whereas, in the second part of ACR for  a period of six months from 3.10.1987 to 31.3.1988, Reporting Officer,  Reviewing Officer and Accepting Officer all had rated him as "Good".  Having gone through all these facts, the Review DPC is of the view that  the overall performance of Shri A.K. Narula during the year 1987-88 was

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"Good" only. His case is not identical to that of Shri R.S. Virk since his  ACR was for full one year and Reporting and Reviewing Officer had  graded him as "Very Good" and it was the final Accepting Authority who  had graded him as "Good" without any reasons. Hence, no case is made  out to upgrade the report of Shri A.K. Narula from "Good" to "Very  Good"."

The competent authority approved the recommendations of the review DPC  and the decision was communicated by order dated 5.1.2004.

10.     This led to the second round of litigation. The respondent filed W.P.  No.4455 of 2004 wherein he sought quashing of the order dated 5.1.2004  and a direction to the appellant to promote him to the rank of Second-in-  command with reference to DPC held on 13.6.1990 with all consequential  benefits. A Division Bench of the High Court allowed the said petition by  judgment and order dated 27.5.2005. The Division Bench held that the  judgment dated 12.7.2001 of the Division Bench in the earlier round of  litigation had  held that the respondent was not treated fairly and had  specifically directed the DPC to reconsider his case in the light of its  observations; that the said decision attained finality as the SLP filed by  Appellants against the said judgment dated 12.7.2001 was dismissed by this  Court on 11.8.2003; that inspite of the above, the review DPC had reiterated  its earlier decision and thereby failed to comply with the observations in the  judgment dated 12.7.2001; and that therefore, the decision of the review  DPC could not be upheld. The High Court, therefore, quashed the order  dated 5.1.2004 and directed the appellants to reconsider the case of the  respondent for promotion with reference to the DPC held on 13.6.1990 by  treating the entry for the year 1987-88 as ’very good’. The court also directed  that respondent shall be granted all consequential reliefs. The said decision  is challenged in this appeal by special leave.

11.     On the contentions urged, two questions arise for consideration:

(i)     Whether the case of respondent was similar to or identical with  that of R.S. Virk and, consequently, DPC ought to have treated  the CR of respondent for the year 1987-88 as ’very good’  thereby upgrading the overall grading from ’good’ to ’very  good’.

(ii)    Whether the decision dated 17.2.2001 in the first round of  litigation had concluded the issue of entitlement of the  respondent to the rating of ’very good’ for 1987-88 and  consequently, all that was required of the review DPC was to  include him in the approved list of Assistant Commandants  with the overall rating of ’very good’ and promote him to the  rank of Second-in-Command’ with reference to DPC dated  13.6.1990 ?  

Re : Question (i) :

12.     R.S. Virk had the rating of ’good’ for 1985-86 and 1988-89. He had  three ’very good’ ratings and two ’good’ rating during the five year period  between 1985-86 and 1989-90. The records of R.S. Virk disclosed that for  the year 1988-89, the reporting authority had graded him as ’very good’; the  reviewing authority had concurred and also rated him as ’very good’; but the  accepting authority had downgraded his rating from ’very good’ to ’good’  without assigning any reason for not accepting the concurrent rating of ’very  good’ by the reporting authority and reviewing authority. DPC was,  therefore, of the view that where both the reporting authority and reviewing  authority had graded the performance of R. S. Virk as ’very good’, the  accepting authority was not justified in downgrading the rating without  assigning any reason. Therefore exercising the power given under the

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guidelines contained in the OM dated 10.3.1989, DPC modulated his rating  for that year as ’very good’. As a consequence, the ’very good’ rating of R.S.  Virk increased from three to four, resulting in upgradation of overall DPC  rating from ’good’ to ’very good’.   

13.     The respondent had also secured three ’very good’ ratings for 1986-87,  1988-89 and 1989-90. For the other two years, that is  for the years 1985-86  and 1987-88, the respondent had secured the rating of ’good’. The respondent  contended that his rating for 1987-88 was similar to that of R.S. Virk for  1988-89 as the accepting authority had downgraded his rating without  assigning any reason, and therefore, DPC ought to have modulated his rating  for 1987-88 as ’very good’. On careful consideration, we find that  respondent’s case was different from that of R. S. Virk. The CR of  respondent for the year 1987-88 consisted of two parts. For the first half  period, that is, from 1.4.1987 to 26.9.1987, the reporting authority had  graded him as ’good’ and reviewing authority had graded him as ’very good’  and the accepting authority had graded him as ’good’. In regard to the second  half, that is, 3.10.1987 to 31.3.1988, all the three authorities (reporting  authority, reviewing authority and the accepting authority) had rated him as  only ’good’. There was no question of reviewing or upgrading the rating of  respondent for the second half of 1987-88, as all the three authorities had  concurrently graded him as ’good’. Even in regard to the first half of that  year (1.4.1987 to 26.9.1987), unlike the case of R.S. Virk where both the  reporting authority and the reviewing authority had unanimously given the  rating ’very good’, the reporting authority had rated the respondent as ’good’  and the reviewing authority had rated him as ’very good’; and in view of  divergence between the reporting authority and reviewing authority, the  accepting authority chose to rate him as ’good’. The DPC, on assessment,  had rightly found that there was no case for revising the grading of  respondent. The review DPC also found that the facts of respondent’s case  were different from that of R.S. Virk. The CRs demonstrated that R.S.Virk  deserved upgrading and respondent did not.    

14.     The guidelines give a certain amount of play in the joints to the DPC  by providing that it need not be guided by the overall grading recorded in the  CRs, but may make its own assessment on the basis of the entries in the  CRs. The DPC is required to make an overall assessment of the performance  of each candidate separately, but by adopting the same standards, yardsticks  and norms. It is only when the process of assessment is vitiated either on the  ground of bias, malafides or arbitrariness, the selection calls for interference.  Where the DPC has proceeded in a fair, impartial and reasonable manner, by  applying the same yardstick and norms to all candidates and there is no  arbitrariness in the process of assessment by the DPC, the court will not  interfere (vide State Bank of India v. Mohd. Mynuddin [1987 (4) SCC 486],  Union Public Service Commission v. Hiranyalal Dev [1988 (2) SCC 242]  and Badrinath v. Government of Tamil Nadu [2000 (8) SCC 395]). The  review DPC reconsidered the matter and has given detailed reasons as to  why the case of the respondent was not similar to that of R S Virk. If in  those circumstances, the Review DPC decided not to change the grading of  the respondent for the period 1.4.1987 to 31.3.1988 from ’good’ to ’very  good’, the overall grading of the respondent continued to remain as ’good’.  There was no question of moving him from the block of officers with the  overall rating of ’good’ to the block of officers with the overall rating of ’very  good’ and promoting him with reference to the DPC dated 13.6.1990. In the  absence of any allegation of mala fide or bias against the DPC and in the  absence of any arbitrariness in the manner in which assessment has been  made, the High Court was not justified in directing that the benefit of  upgrading be given to respondent, as was done in the case of  R. S. Virk.  

Re : Question (ii)

15.     We have gone through the judgment dated 11.2.1992 of the learned  Single Judge in CWP No.12316/1990 and the judgment of the Division  Bench dated 12.7.2001 in LPA No. 586 of 1992 in the first round of  litigation.

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16.     In the case of R. S. Virk, the DPC held that there was no justification  for the accepting authority to downgrade the rating as ’good’ without  assigning any reason, when both the reporting authority and the reviewing  authority had rated his performance as ’very good’. Therefore, it made its  own assessment and upgraded the rating of R.S.Virk for the year 1988-89 as  ’very good’. As a consequence, R.S. Virk had four ’very good’ ratings and   was placed in the block of ’very good’ candidates. The High Court was of the  view that if the downgrading of respondent’s rating for the year 1987-88 by  the accepting authority from ’very good’ to ’good’ was similar to that of R. S.  Virk, then the same yardstick should be applied to Respondent and the rating  that has been downgraded by the accepting authority as ’good’ should be  upgraded as ’very good’ for 1987-88. It also observed that failure to do so  would be ’unfair’. Having made these observations, the High Court set aside  the decision of DPC for 1990 and directed a review DPC to reconsider the  case of the respondent. It follows, therefore, that review DPC was required  to decide whether the case of the respondent for the year 1987-88 was  similar to that of R. S. Virk for the year 1988-89, and if so, upgrade the  rating of respondent for the year 1987-88 as ’very good’. It is true that in that  event respondent also would have had four ’very good’ rating and his overall  rating would have jumped from ’good’ to ’very good’. But all that depended  on the finding by review DPC as to whether respondent was entitled for  upgradation of rating for 1987-88.

17.     The decision of the Single Judge dated 11.2.1992 merged with the  judgment dated 12.7.2001 in the LPA. There is no conclusive finding in the  judgment dated 12.7.2001 of the Division Bench that the respondent was  entitled for upgradation of the entry for 1987-88 from ’good’ to ’very good’.  The Division Bench held that no plausible explanation was given for  adopting different yardsticks in the case of R S Virk and the respondent, if  respondent’s case was similar to that R. S. Virk. The effect of the decision  was that if the downgrading of rating of Respondent for 1987-88 was similar  to the downgrading of the rating of R. S. Virk for 1988-89, the DPC should  modulate the rating of respondent for 1987-88 as ’very good’ instead of  ’good’, as was done in the case of R.S.Virk. The direction by the Division  Bench that ’if on reconsideration, the respondent is found suitable, then he  shall be promoted with retrospective effect’ and that ’DPC shall reconsider  his case’ make it clear that DPC was required to examine whether the case of  respondent was identical to that of R. S. Virk. Only if the facts were the  same, respondent was entitled to be treated in a manner similar to R.S.Virk.   The Review DPC was, therefore, entitled to examine the case of respondent  on merits and take a decision.  

Conclusion :

18.     In view of our finding that the case of respondent was different from  that of R.S.Virk, the decision of review DPC that the respondent did not  deserve upgradation from ’good’ to ’very good’, deserves to be upheld.

19.     We, therefore, allow this appeal, set aside the judgment dated  27.5.2005 passed by the High Court and dismiss the writ petition upholding  the decision of the review DPC. Parties to bear their respective costs.