National Federation of Atomic Energy Employees
Recognised by DAE vide DAE OM No.
JCM Office, Brindavan, Anusaktinagar, Mumbai 400 094
Email address: email@example.com
Ref. No: nfaee/sg/09/45 12.02.2009
Sub: Confidential Report is not confidential
The Supreme Court of
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With fraternal Greetings
Address for Correspondence: Jayaraj.KV, Secretary General, NFAEE
PESS/UED; BARC, Trombay, Mumbai 400 085
Tel. No: (O): 022 – 25594549; (Res): 022 – 2746 4704; (Mobile): 9869501189
In the civil appeal No. 7631 of 2002/dated
“In our opinion, every entry (and not merely a 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 bench mark or not. Even if there is no bench mark, 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.
A person getting any of the entries ...should be communicated the entry so that he has an opportunity of making a representation praying for its up-gradation, and such a representation must be decided fairly and within a reasonable period by the concerned authority.
In our opinion if the Office Memorandum dated 10/11.09.1987, is interpreted to mean that only adverse entries (i.e. ‘poor’ entry) need to be communicated and not ‘fair’, ‘average’ or ‘good’ entries, it would become arbitrary (and hence illegal) since it may adversely affect the incumbent’s chances of promotion, or get some other benefit.
For example, if the benchmark is that an incumbent must have ‘very good’ entries in the last five years, then if he has ‘very good’ (or even ‘outstanding’) entries for four years, a ‘good’ entry for only one year may yet make him ineligible for promotion. This ‘good’ entry may be due to the personal pique of his superior, or because the superior asked him to do something wrong which the incumbent refused, or because the incumbent refused to do sycophancy of his superior, or because of caste or communal prejudice, or for some other extraneous consideration.
In our opinion, every entry in the A.C.R. 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 up-gradation.
Originally there were said to be only two principles of natural justice: (1) the rule against bias and (2) the right to be heard (audi alteram partem). However, subsequently, as noted in A.K. Kraipak’s case (supra) and K.L. Shephard’s case (supra), some more rules came to be added to the rules of natural justice, e.g. the requirement to give reasons vide S.N. Mukherji vs. Union of India AIR 1990 SC 1984. In Maneka Gandhi vs. Union of India (supra) (vide paragraphs 56 to 61) it was held that natural justice is part of Article 14 of the Constitution.
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.
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 ... 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... 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.
We further hold that when the entry is communicated to him the public servant should have a right to make a representation against the entry to the concerned authority, and the concerned authority must decide the representation in a fair manner and within a reasonable period. We also hold that an authority higher than the one who gave the entry must decide the representation; otherwise the likelihood is that the representation will be summarily rejected without adequate consideration, as it would be an appeal from Caesar to Caesar. All this would be conducive to fairness and transparency in public administration, and would result in fairness to public servants. The State must be a model employer, and must act fairly towards its employees. Only then would good governance be possible.
We, however, make it clear that the above directions will not apply to military officers because the position for them is different as clarified by this Court in Union of India vs. Major Bahadur Singh 2006 (1) SCC 368.”