The Bombay High Court rejected a writ petition challenging an identical order of the Central Administrative Tribunal concerning the respondent's promotion. The court held that the Tribunal correctly applied Supreme Court law regarding adverse ACR entries and found the impugned order just and fair.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.1764 OF 2004
Union of India & Ors. Vs. Nand Lal Parihar
..Petitioners.
..Respondent.
Mr. Suresh Kumar with Mr. Y.R. Mishra i/b T.C. Kaushik for the petitioners.
Mr. P.A. Prabhakaran i/b S.G. Pillai for the respondent.
CORAM : DALVEER BHANDARI, C.J.& DR.D.Y.CHANDRACHUD, J.
10th August, 2004.
P.C. :
1. The respondent belongs to a Scheduled Caste and joined the
revenue service of the Union in 1978. In 1989, he was promoted as Joint Commissioner of Income Tax and in 2000 as Additional Commissioner of Income Tax, a post which he presently occupies
at Mumbai. The claim of the respondent for promotion as Commissioner of Income Tax was considered in 2001 and 2002. In the promotion order of 2001, 394 Additional Commissioners were promoted but not the Respondent whereas, in the promotion order of January 2002, 49 of his juniors have been promoted. The respondent moved the Central Administrative Tribunal which has
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decided upon his grievance by the impugned judgment dated 20th November, 2003.
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said officer, who had five good ACRs was promoted to the post of Commissioner of Income Tax. The Review DPC has been directed to consider the case of the respondent on the same basis.
contesting parties, we are of the view that no case for interference under Article 226 of the Constitution has been made out. The view taken by the Tribunal is in accordance with the law laid down by the Supreme Court in U.P. Jal Nigam 's case. The submission of the employer before the Supreme Court in that case was that a mere downgrading of the entries in the confidential reports could not be termed as adverse so as to obligate the employer to communicate such an entry to the employee. This submission was repelled by the High Court. The Supreme Court held that even a positive confidential entry in a given case can 'perilously' be adverse and, to say that an adverse entry should always be qualitatively damaging may not be true. This decision was followed by a Division Bench of this Court in Dr. Binoy Gupta 's case (supra). The Division Bench held there that the non-selection of the petitioner to the post of Chief Commissioner of Income Tax on the basis of a downgrading of the ACR from “very good” to
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“good” in successive years would stand vitiated where such a downgrading had not been communicated. The view of the Tribunal is thus consistent with the law laid down by the Supreme Court and as followed in the judgment of the Division Bench of this Court.
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departmental enquiry was initiated in September 1986 and this resulted in a penalty in July 1992 of withholding increments for five years without cumulative effect. This resulted in a deprivation of annual increments, the denial of Senior Time Scale and a denial of promotion as Deputy Commissioner which was otherwise due in 1987. The respondent thereupon moved the Jaipur Bench of the Tribunal which allowed the original application in January 1996. The observations of the Jaipur Bench of the Tribunal have been extracted in the impugned judgment and, it would be worthwhile for us to refer to some of those findings.:
“In view of what has been discussed above, we have been persuaded to accept the allegation that the actions of the officers of the respondents' department were suspect and not without malice and malafides. It appears that there was premeditated intention to harass and prejudice the applicant in whatever manner possible by the officers of the Jaipur level i.e. the then Chief Commissioner of Income Tax, G.C. Agarwal & Others in the Board who in spite of the clear rulings and instructions of the Government kept the applicant under suspension without issuing him a charge sheet. The applicant is not even paid his subsistence allowance. The most hard hitting action was in not giving him the due higher scale which he was entitled to as long back as November 1982 and refix his pay in terms of IVth Pay Commission in 1986. His due increment which cannot be stopped without an order of competent authority were withheld for more than ten years in the higher scale of pay of the senior time scale or even junior time scale of pay. His name was not put for consideration by the DPC even though admittedly a DPC was
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held in April 1987 when his batch mates were considered and promoted. Therefore, there is an unmistakable indication that the respondents have chosen to punish him, unmindful of the irregularity and illegal procedures and they succeeded in denying him both the rights of drawal of due increments for more than ten years as also his right of being considered for promotion. These Civil injuries caused to the applicant cannot be allowed to be perpetuated with impunity by the respondents.”
Having thus considered the matter in all its perspectives, we are of the view that the impugned order is just and fair and does not warrant interference under Article 226 of the Constitution. We find
no merit in the petition which is accordingly rejected.
CHIEF JUSTICE
DR.D.Y.CHANDRACHUD, J.
2 issues framed by the court
Whether the High Court should interfere under Article 226 of the Constitution in an identical order of the Central Administrative Tribunal regarding promotion grievances.
Whether the Tribunal was justified in directing a review due to non-communication of adverse ACR entries and caste-based discrimination.
Colour shows how this judgement treated each authority
U.P. Jal Nigam v. Prabhat Chandra JainFollowed¶3
U.P. Jal Nigam v. Prabhat Chandra Jain ((1996) 2 SCC 363) · Who else cites this
Dr. Binoy Gupta v. Union of IndiaFollowed¶3
Dr. Binoy Gupta v. Union of India (2002(3) ATJ 7)
Union of India
Nand Lal Parihar
Dalveer Bhandari
Dr. D. Y. Chandrachud
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
