# R. L. BUTAIL v. UNION OF INDIA & ORS

- **Citation:** [1971] 2 S.C.R. 55
- **Court:** Supreme Court of India
- **Decided:** 1970-09-08
- **Bench:** M. Hidayatullah, J. M. Shelat, G. K. MrrTER, C. A. Vaidialingam, A. N. Ray
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/r-l-butail-v-union-of-india-ors-5180
- **Pages:** 18

## Headnote

Departmental Ru/ea--CentraJ WMer and Power Commission (Power
Wing)-Adverse entries in confidential reports whether must set out
specific instances justifying them-Whether must be made after reasonable
opportunity to show cause-Non-promotion on basis of such entries
whether punishment attracting Art. 31 i of Constitution,
Fundamental Rules-Rule 56(;)-<:ompulsory retirement-Vr./idity of
rule-'Public interest.'
The appellant, an electrical engineer, entered the service of Simla
Electricity Board in 1934. In 1949 his servi~ were transferred to the
Central Electricity C-Ommission, later designated as Central Waler and
Power Commission (Power Wing).
In 1955 he was also promoted to
the post of Directo'r and was confirmed as such with effect from 1960.
There were adverse remarks. in his confidential reports for the years J 964
and 1965.
On these being communicated to him he made representation
asking for specific instances on which adverse information about hin1 had
been recorded. These representations were rejected. In the meantime the
question of filling the post of Director (Selection Grade)/Deputy Chief
Engineer arose.
Both in !964 and 1965 the appellant was over-looked
by the Departmental Promotion C-Ommittee· and the Union Public Service
Commission for this post or that of a n1ember.
Later with effect fron1
August 15, 1967, on completion of the age of 55 years he has compulsdrily retired under r, 56(j) of the Fundamental Rules made under Art.
309 of the C-Onstitution.
The appellant filed three writ petiti0ns in the
High C-Ourt oi Punjab challenging the validity of the said entries, ;ind the
said order of compulsory retirement.
The High Court dismisst.!d all the
writ petitions.
Appeal in this C-Ourt was filed with certificate.
The
appellant's contentions which fell for consideration were (i) that the said
two confidential reports were contrary to the Departmental Rules in
~,..,
much ait they did not set out specific instances justifying them; (2) that
they were placed before the Departmental Promotion Committee and the
Public Service Commission before thev were con1municated to him and
he was prejudiced thereby; (3) that the refusal of the Departmental Promotion CommittCe to recomn1end him for the higher posts and· 0f the
Public Service Commission to select hint based on such invalid r.:porh
was also invalid; ( 4) that making an adverse entry which resulted in
wilhholding promotion to him amounted to a penalty; since no opportunity was given to him of being heard in this respect,
th~rc wa_s a
violation of Art.. 311 of the C-Onstitution; (5) that making an ent\"y without
holding a departmental inquiry and hearing him wa_s contrary to natural
justice; (6) that the adverse entries in question were contrary to fact;:
(7) that the said entries were malc. fide: (8) that the higher posts W
which he was eligible were promotion an<l not selection posts at the
relevant time· (9) that the order compulsorily retiring him was bad in
as much as Funriamental Rule 56(j) was itself invalid: (10) that in an\
:56
SUPREME COURT REPORTS
[1971] 2 S.C.ll
event the order was not made in public interest and was, therefore. contrary to the rule and also Arts. 14 and 1 G of the Constitution .
. HELD : ( 1) An examination of the departmental rules clearly shows
that a confidential report is intended to be a general assessment of work
P.erformed by a Government servant subordinate to the reporting auth<>-
nty, that su~h reports are maintained for the purpose of serving as data
of. comparative merit when questions of promotion, confirmation etc.
arise.
They also show that such reports are not ordinarily to oontalli
specific instances upon which assessments are made except in cases where
as a result of any specific incident censure or a warning is issued and
when such warning is by an order to be kept in the personal file of the
Government servant. n such cases an officer making the order has to give
reasonable opportunity to the Government servant to present

## Text

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R. L. BUTAIL
v.
UNION OF INDIA & ORS,
September 8, 1970
55
[M. HIDAYATULLAH, C.J., J. M. SHELAT, G. K. MrrTER,
C. A. VAIDIALINGAM AND A. N. RAY, JJ.]
Departmental Ru/ea--CentraJ WMer and Power Commission (Power
Wing)-Adverse entries in confidential reports whether must set out
specific instances justifying them-Whether must be made after reasonable
opportunity to show cause-Non-promotion on basis of such entries
whether punishment attracting Art. 31 i of Constitution,
Fundamental Rules-Rule 56(;)-<:ompulsory retirement-Vr./idity of
rule-'Public interest.'
The appellant, an electrical engineer, entered the service of Simla
Electricity Board in 1934. In 1949 his servi~ were transferred to the
Central Electricity C-Ommission, later designated as Central Waler and
Power Commission (Power Wing).
In 1955 he was also promoted to
the post of Directo'r and was confirmed as such with effect from 1960.
There were adverse remarks. in his confidential reports for the years J 964
and 1965.
On these being communicated to him he made representation
asking for specific instances on which adverse information about hin1 had
been recorded. These representations were rejected. In the meantime the
question of filling the post of Director (Selection Grade)/Deputy Chief
Engineer arose.
Both in !964 and 1965 the appellant was over-looked
by the Departmental Promotion C-Ommittee· and the Union Public Service
Commission for this post or that of a n1ember.
Later with effect fron1
August 15, 1967, on completion of the age of 55 years he has compulsdrily retired under r, 56(j) of the Fundamental Rules made under Art.
309 of the C-Onstitution.
The appellant filed three writ petiti0ns in the
High C-Ourt oi Punjab challenging the validity of the said entries, ;ind the
said order of compulsory retirement.
The High Court dismisst.!d all the
writ petitions.
Appeal in this C-Ourt was filed with certificate.
The
appellant's contentions which fell for consideration were (i) that the said
two confidential reports were contrary to the Departmental Rules in
~,..,
much ait they did not set out specific instances justifying them; (2) that
they were placed before the Departmental Promotion Committee and the
Public Service Commission before thev were con1municated to him and
he was prejudiced thereby; (3) that the refusal of the Departmental Promotion CommittCe to recomn1end him for the higher posts and· 0f the
Public Service Commission to select hint based on such invalid r.:porh
was also invalid; ( 4) that making an adverse entry which resulted in
wilhholding promotion to him amounted to a penalty; since no opportunity was given to him of being heard in this respect,
th~rc wa_s a
violation of Art.. 311 of the C-Onstitution; (5) that making an ent\"y without
holding a departmental inquiry and hearing him wa_s contrary to natural
justice; (6) that the adverse entries in question were contrary to fact;:
(7) that the said entries were malc. fide: (8) that the higher posts W
which he was eligible were promotion an<l not selection posts at the
relevant time· (9) that the order compulsorily retiring him was bad in
as much as Funriamental Rule 56(j) was itself invalid: (10) that in an\
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SUPREME COURT REPORTS
[1971] 2 S.C.ll
event the order was not made in public interest and was, therefore. contrary to the rule and also Arts. 14 and 1 G of the Constitution .
. HELD : ( 1) An examination of the departmental rules clearly shows
that a confidential report is intended to be a general assessment of work
P.erformed by a Government servant subordinate to the reporting auth<>-
nty, that su~h reports are maintained for the purpose of serving as data
of. comparative merit when questions of promotion, confirmation etc.
arise.
They also show that such reports are not ordinarily to oontalli
specific instances upon which assessments are made except in cases where
as a result of any specific incident censure or a warning is issued and
when such warning is by an order to be kept in the personal file of the
Government servant. n such cases an officer making the order has to give
reasonable opportunity to the Government servant to present his case.
The contention, therefore, that the adverse remarks against the appellant
did not contain specific instances and were, therefore, contrary to the rules
· could not be sustained.
Equally unsustainable was the corollary that
because of that omission the appellant could not make an adequate repiesentation and that therefore the confidential reports were vitiated. [62
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(2) Whenever a Government servant is aggrieved by an adverse entry
'he has an opportunity of making a representation. Such a representation
'Would be considered by a higher authority, who, if satisfied would either
amend, correct or even expunge a wrong entry, so that it is not as if aa
aggrieved Government servant is without remedy.
Making adverse enlty
is not equivalent to imposition of a penalty which would necessitate an
enquiry or the giving of a reasonable opportunity of being heard to the
-Oovernment servant. It does not amount to the penalty of censure aet out
in r. 11 of the Central Civil Service ( Oassification, Control & Appeal)
Rules. [ 62 Hj
( 3) The confidential report in respect of the appellant for ,ne year
1964 was rrepared on March 18, 1966. Since the Departmental Prom<>-
1ion Committee had met in 1964, obviously, the adverse entry for the
year 1964 was not and could not te before that Committee. If at all the
Committee declined to recommend the appellant's name because of
adverse confidential reports, such reports could only be for the earlier
years.
The record showed that confidential reports for 1955, 1956 and
1959 were adverse to him.
The confidential report for 1965 was prepared in 1966.
Therefore, that report . also would not be before the
Committee when it declined to recommend the appellant in 1965. The
fact that the appellant's representation against the report for 1964 w ..
not before the · Committee when it made its recommendation did not
make any difference.
The representation made by the appellant though
made subsequen!ly was_ actually rejected with the result that the confidential report for 1964 remained u~changed. The practice ,followe~ by the
Promotion Committee was that if 1n such a case a representation were
to be accepted and in consequerice the confidential
report was altered
or expunged, the Promotion Committee would have to review its. recom__mendations in the light of such 'result.
In the present case no
quesflon of such a review arose as the reports for 1964 and 1965
\yere. in spite of representations by th~ appell~n.t n~1ther ~ltered nor set
aside.
Tncre wa<:. therefore, no question of 1n1ushce having been· done
to the appellant des~ite the fact that the Co~itt~e had befo<e it ~~c
confidential report \\'thout there being along with 1t any representation
made by the appellant. Nor. did the. question ofbreach of natu:al justice
arise in view of the aforesatd practtce followed by the Promotion Committee. [63 F-64 DJ
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R. L. BUTAIL v. UNION (She/ot., /.)
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( 4) Under r. 11 of the Central Services Rules,. 1965, although withholding promotion is not a penalty which conld be imposed on a Government servant; the explanation thereto expressly provides that non-promotion of a Government servant after consideration of his case does not
oonstitute a penalty.
There was, therefore, no question of the department having to hold an . inquiry and then 011ly to decide 11ot to promote
the appellant to the higher posts. ~64 BJ
( 5) The appellant could also not challenge his non-promotion on the
ground of seniority alone.
The post of a Member was declared to be·
a selection post by the President as early as in 1952. By Rules made by
the President under Art. 309 dated November 6,
1965~ the. post of a·
Member along with certain other posts was declared to be a selection post.
The l'espondent's counter affidavit clearly affinlied that the post was a
selection post.
The burden of proving otherwise was 011 the appellant
which he had not discharged.
On the material brought on record· it
could not be held that the post of a. Member was not a selection post so
that the mere fact of the app!'llant being the seniormost amongst the
Directors in the department could not entitle him to be appointed (64 F65 Bl
( 6) The appellant had been unable to prove that the action against
him was mala fide. (69 H-70 A]
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(7) The validity of r.
56(j) cannot be challenged in view of the
earlier· decisions of this Court L71 F-G]
Union of India v. Vol. J. N. Sinha, (1971] 1. S.C.R. 791, applied.
Moti Ram Deka v. General Manager, N.EF. Railway, [1964] 5
S.C.R. 587, Gurdev Singh Sidhu v. Punjab, [1964] 7 S.C.R. 587, T. C.
Shivacharana Singh v. Mysore, A.I.R. 1965 S.C. 280 and Takhatrav ShivE
datrai Mankad v. Gujarat, [1969] 2 S.C.C. 120, referred to.
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( 8) On the facts of the . case it could not be held that the order of
compulsory retirement was not in public interest or that the authority
concerned had not applied its mind. [72 D-F]
CIVIL APPELLATE JurusmcnoN : Civil Appeals Nos. 1614 to
1616 of 1968.
Appeals from the judgments and orders dated April 10, 1968
of the Delhi High Court in Civil Writs Nos. 608-D and 607-D of
1966 and 1550 of 1967.
The appellant appeared in person (in all the appeals).
Jagadish Swarup, Solicitor-General, L. M. Singhvj and S. P.
Nayar, for the respondents (in all the _appeals).
Shyamala Pappu, Bindra Thakur and Vineet Kumar, for tb.e
iintervener (in C.A. No. 1616 of 1968).
ORDER
After having heard and considered the arguments urged on
behalf of the parties we are of the view, for tea$ODS which we
shall set out later on, that all the three appeals fail and sboutd be
5-f.IUSsp CI/71
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SUPREM! COURT REPORTS
dismissed.
Order accordingly.
The appellant wili pay to tbt.
respondents the costs of these appeals. Such costs. to be one 11et
of costs.
The Judgment of the Court was delivered by
Shelat, J. On August 14, 1970 we pronounced our order cmmissing these three appeals wi!h costs stating at the time that oi;r
reasons for the same would follow. The order was pronounced
at the request" of the appellant who desired that we should do so
before August 15, 1970 when he was completing 58 years of his
· age. Accordingly we are now setting out the reasons for the said
0I9er.
The three appeals, by certificate, question the validity of two
confidential reports for the years 1964 and 1965 made against
the appellant by the reporting and the reviewing officers in the
Central Water and Power Commission (Power Wing) and the
order dated May 12, 1967 by which the appellant was compulsorily retired on his attaining the age of 55 years.
The appellant, an electrical engineer, began his career in the
Simla Electricity Supply Undertaking and worked there from 1934
to 1949. hi 1949, he was appointed as a Project Officer in the
Central Electricity Commission, now designated the Central W.ater
and Power Commission (Power Wing). He was confirmed in that
post in 1950 and later on was promoted to the post of a di'.'XtOr,
in which post he was working since 1955. He was contirmed in
that post by an order, dated April 15, 1963 with rel!'ogpective
effect from August 5, 1960.
·
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By a communication dated September 16,
1965 he was
informed of an adverse entry in the annual confidential report for
the year 1964. The ently reads as follows :
". . . A 'Problem Director' in that it falls to the inevitable lot of some member to have him under his
charge and manage as far as practicable ... "
" ... I agree with the above even though the officer
is intelligent and capable of good work if he wishes to
apply himself wholeheartedly."
By· another communication dated July 7, 1966 the appellant was
. informed that an adverse entry had been made in his confidential
report also for the year J 965. That entry reads 1!5 follows :
"His work during the year was below the average,
con,idering his senior position in the Directors' Cadre.
Shri Butail can do good work if he like(s) to do so."
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On receiving these communications the appellant made representations in winch he asked for specific instances on which adverse
opinions about him had been recorded.
These representations
were, however, rejected. In the meantime, the question of filling
in the post of Director (Selection Grade)/Deputy Chief Engineer
arose. According to the appellant, this post as also certain other
lligher posts including that of a member were promotion posts .
Being the only permanent director amongst the candidates, he was
the seniormost of them all and claimed that he was for that reasoB
entitled to be promoted. ·Both in 1964 and 1965, however, he
was overlooked by the Departmental Promotion Committee and
the Union Public Service Commission.
On May 12, 1967, he was served with an order compulsorily
retiring him from service with effect from August 15, 1967 on
completion of the age of 55 years.
The order was made under
r. 56(j) of the Fundamental Rules made under Art. 309 of the
Constitution.
The appellant filed three writ petitions Nos. 608 and 607 of
1966 and 1550 of 1967 in the High Court of Punjab challenging
the validity of the said entries and the said order of compulsory
retirement and praying that the said two entries should be expunged and proper entries made, that the orders declaring him unfit for
p10motion and the said order of compulsory retirement should be
quashed. The High Ccurt dismissed all the writ petitions. Hence
these appeals.
The appellant contended ( i) that the said two confidential
reports were contrary to the rules inasmuch as they did not set
out specific instances justifying them; ( 2) that they were placed
before the Departmental Promotion Committee as also the Public
Service Commission before they were communicated to him, and
therefore, before he could make representations against them,
that the consequence was that the said two bodies had before
them the said reports only and were not aware of his objections
to them; (3) that the refusal of the Departmental Promotion Committee to recommead him for the higher posts and of the Public
Service Commis5ion to select him, based on such invalid reports.
was also invalid; ( 4l that making an adverse entry which resulted
in withholding promotion to him amounted to a penalty; therefore, an adverse entry which had such a result would be governed
by Art. 311 and could not be made unless before making it the
concerned Government servant was given a reasonable opportunity
of being heard; (5) that, in any event, making such an entry with-
. H
out first holding a departmental inquiry and hearing such a Government servant was contrary to natural justice; ( 6) that his work as
a director was satisfactory, that the said entries were contrary to
facts and that no reasonable person would have arrived at such
60
SUPREME COURT REPORTS
[1971] 2 S.C.R.
adverse .
conclusions
as
recorded in the entries·
( 7)
that the. said entries were made mala
fide;
and . (8)
that the higher posts to which he was eligible were promotion and
not selection posts at the relevant time, that they were made
selection posts only in November 1965, a11d therefore, being the
only pennanent director amongst all the rest of the directors, he
was entitled by his seniority to the higher post in preference to
others. Even assuming that those posts were at the relevant time
selection posts, he being a pennanent director, his case could not
be referred to the Public Service Commission.
Regarding the order compulsorily retiring him, the contention
was that Fundamental Rule 56(j) was invalid, thatin any event
the order was not .made in public interest as his work as a director
was satisfactory and was therefore contrary to the Rule and also
Arts. 14 and 16 of the Constitution.
The question raised in regard to the impugned confa\ential
entries is thus three fold. Firstly, whether the reportiog authority
was required to give specific instances to enable the appellant to
make an adequaterepresentation. Secondly, whether the rep(>rili!g
officer was bound to hear the appellant before deciding to make
the entry. And thirdly, whether such an entry amounts to censure, one of the penalties provided by r. 11 of the Central Civil
Services (Classification, Control and Appeal) Rules, 1965. That
rule enumerates several penalties which can be imposed on· a
Government servant and amongst minor penalties there set out are
(i) censure, and (ii) withholding a
promotion.
Compulsory
retirement is under the rule one of the major pe;ialties.
In considering this question we may at the very outset notice
that the rules regarding preparation and maintenance of confidential reports are by way of departmental instructions and are neither
statutory rules nor rules made under Art. 309.
Prior to 1961
these instructions were contained in ·an office order dated July 28,
1955 issued .. by the Central Wat~r and Power Commission (Water
Win!!l. We do not know whether they also applied to the Power
Win!!. But for the present we will assume that they applied to the
Power Wing. R. 2 of these rules sets out the object of maintaining
confidential reports, viz., to ensure that promotions were ma.de
with the utmost fairness to the officers on the one hand and with
due regard to the interest of the public service on the other. The
rules. therefore, enjoin upon officers at each level to keep a proper
watch over the work and conduct of those below them and provide
training and guidance to such officers whenever necessary, For
this puf'Jose a continuous record of service in the form of confidential reports of all the officers working in 'the Commission was
necessarv.
Rr. 3 and 7 indicate that what was required was a
general assessment of work for the whole of the year, the conduct
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of the officer concerned, his efficiency, ability, initiative or lack
<>f it etc. and not a judgment with reference to any specific i~ci
dent. R. 7 in express terms provides that an adverse entry relating
.to a specific incident should not ordinarily find place_ in a charac!er
roll, unless, in the course of departmental proceedings :i specific
punishment such as censure has been a'_Varded on the basis of sucli
an incident
Where, however, a reportmg officer feels that though
.the matter is not important enough to call for departmental pr?'
ceedings, it is important enough to be mentio;'led specifically 1Il
the confiuential report, he should, before making such an entry,
satisfy himself that his own conclusion has been arrived at only
after a reasonable opportunity has been given to the officer reported to present his case relating to the incident. The rule also provides ·that while communicating . adverse remarks to ~e officer
concerned the substance of such remarks and not their actual
wordings neod be conveyed.
On March 3, 1961; an office order was issued by the Commission which superseded all instructions issued previously on the
subject of maintenance of confidential reports. This order· applied
to all officers of the Commission, gazetted and non-gazetted, and
also to its subordinate offices.
The order once again recites the
importance of preparing and maintaining confidential reports. R. 4
requires that such a report should contain an appreciation of the
general qualities of the Government servant such as
integrity,
intelligence, keenness, industry, tact, attitude towards his superiors
and subordinates, relations with fellow-employees, work-attitudes
etc., and also "a summing-up" in general terms of the Government'
servant's good and bad qualities and a categorisation or rating such
.as 'Outstanding~, 'Very good', 'Good', 'Fair', or 'Poor'. Such a
<:ategorisation is, however, not necessary iii the case of officers of
or above the ratik of Superintending Engineer. Rule 10 expressly
provides that the reporting authority is not required to give any
spetific instances of his good or bad work or conduct upon which
the opinion is based.
R. 28 provides that while communicating
.an adverse remark to the concerned Government servant the substance of such report and not its actual wording need ht conveyed.
Tua~ is because the primary object of such communication is,
firstly, that' the concerned Government servant may remedy his
defects, and secondly, that iy should serve as a timely warning to
the Government servant of such defects which might otherwise
deprive him of chances of promotion in future. R. 32 entitles a
Government servant to make a representation. Such representation would be examined by an officer superior in rank to the
reviewing officer. That officer would either reject the representation or alter the rernark where he thinks necessary and in the event
of his finding that the remark is actuated by malice or is jncorrect
<>r unfounded, he would expunge· it. R. 34 provides that adverse
62
SUPREME COURT REPORTS
[1971] 2 S.C.R.
entries relating to any specific incident will not ordinarily find
place in the confidential record. But, where a warning is issued
as a result of any specific incident, a copy thereof will ordinarily
be kept in. the personal file of the Government servant concemed .
. In that case he has to .make a specific order to that effect. But
before making such an order he must give to the concerned Government servant a reasonable opportunity to present his case
reJating to the incident.
In case departmental proceedings are
instituted as a result of such an incident and a formal punishment,
such as censure, is awarded, a copy of the order of such punishment
should invariably be placed in the confidential record of the
Government servant.
These rules abundantly show that a confidential report is intended to be a general assessment of work performed by a Government servant subordinate to the reporting authority, that suck
reports are maintained for the purpose of serving as data of comparative merit when questions of promotion, confirmation etc.
arise.
They also show that such reports are not ordinarily to
contain specific incidents upon which assessments are made except
in cases where as a result of any specific incident a censure or a
warning is issued and when such warning is by an order to be
kept in the personal file of the Government servant. In .such a
case the officer making the order has to give a resonable opportunity to the Government servant to present his case. The contention. therefore, that the adverse remarks did not contain specific
instances and were, therefore, contrary to the rules, cannot be sustained. Equally unsustainable is the corollary that because of that
omission the appellant could· not make an adequate representatio11 and that therefore the confidential reports are vitiated ..
Further, the rules do not provide for nor require an opportunity
to be heard before any adverse entry is made. The content.ion that
an enquiry would be necessary before an adverse entry is made
suffers from a misapprehension that such an entry amounts to the
penalty of censure set out in r. 11 of the Central Civil ~ervices
(Classification, Control and Appeal) Rules. The entry 1s made
under the Office Order of 1961 set out above by way of an annual
assessment of the work done by the Government servant and not
by way of a penalty un~er the said Central Ci~il Servic~s Ru~es.
True it is that such remarks would be taken mto cons1derat1on
when a question such as that. ~f promotion· ari.ses and whe'.1 companitive merits of persons ehgible for promotion a.re considered.
But then whenever a Government servant a
~ggneved by an
adverse ~ntry he has an opportunity of makini a representation.
Such a representation would be considered by a higher authority,
who, if satisfied, wo\lld either amend, correct OF even expunge a
wrong entry, so that it is not ~s if an aggrieved Gover!lment servant is without remedy. Makmg of an adverse entry 1s thus not
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equivalent to imposition of a penalty which would necessitate aa
enquiry or the giving of a reasonable opportunity of being heard IQ
the concerned Government servant. 1bis pan of hte appellant's.
grievance, therefore, has to be rejected.
The Departmental Promotion Committee and :the Union Public
Service Commission which met in 1964 aud 1965 did not reoommend or select the appellant for the post of Director (Selection
Grade) or that of a Member. The argument was that being the
only permanent director amongst all the rest of the directors, he
was the senior most of them all. Yet, one Aswath was first pr9moted to the post of Director (Selection Grade) in December
1964 and then a few days later to the post of Member. In this
connection the appellant's allegations were two.
The first was
that the adverse confidential repons for 1964 and 1965 were
placed before the Departmental Promotion Committee and the
Commission long before they were communicated to him and
therefore before he could make any representation against them.
Consequently, the two bodies had no opponunity of knowing his
side of the case and relying on the said reports only overlooked hiS
right to promotion.
Further, the refusal to recommend him far
the higher post amounted to withholding of pr0motion, a penalty
which could not be inflicted on him without a departmental inquiry.
The second was that in any case Aswath ought not to
have been raised to the higher post as allegations of" financial
irregularities were outstanc,ling against him in consequence of which
he resigned on August 1, 1965 and left for the United States Qf
America.
The confidential report in respect of the appellant for the year
1964 was prepared on March 18, 1965. It was, no doubt, released to the appellant on September 16, 1965. But the Promotion Committee met in May 1964 and recommended Aswath for
the post of Director ( Sel.ection Grade). Aswath was promoted
to that post in December 1964. Obviously, the adverse entry for
the year 1964 was not and could not be before that Committee.
If at all the Committee declined to recommend the appellant's
name because of adverse confidential reports, such reports could
only be for the earlier years. The record shows that confidential
reports for 1955, 1958 and 1959 were adverse to him.
These
kad been communicated to him from time to time and the appellant had made representations against them and had failed. Aswath
was appointed a member on December 30, 1964 when the appellant was again overlooked both by the PrOf!lotion Committee and
the Public Service Commission. But that{ again could not be on
account of the confidential report for 1964, which as aforesaid,
was recorded much later in March 1965.
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( 1971) 2 S.C.ll.
The confidential repon for 1965 was .prepared . · in . 1'966;
. Therefore, the report for 1965 would not be before that Com•
mittee when it declined to recommend the appellant in i965.
This time the report for 1964 wotild be before it and that too
without his representation agcinst it as that rep0rt had been conveyed to the al'Pellant in September 1965. That fact, however,
-.cannot make any difference.
The representation made by . the. :a
appellant, though made subsequently, was actually rejected with
the result that the confidential repon for 1964 remained unchang"
ed. The practice followed by the Promotion Committe8 was that
if in such a case a representation were to be accepted and in consequence the confidential repon · was altered qr expunged. the
Promotion Committee would have to review its recommendations
in the light of such a result. . In _the present case, however, ilo
question of .such a review arose as reports for 1964 and. 1965
were, in spite of representations by the appellant,. neither altered
nor set aside. There was, therefore, no question of any injustice
having beeri done to the appellant-despite the fa'ct that the .Committee had before it the confidential report. without there being
along with it any representation made by the appellant. Nor did
the question of a breach of natural justice arise in view of the
aforesaid practice followed by the Promotion Committee.
Under r. 11 Of the Central Services Rules; 1965, although
withholding promotion is one of the penalties which can be
imposed on a Government. servant, the explanation theteto
expressly provides that non-promotion of a Govermnent servant
after consideration of his case does not constitute a penalty. There
was, therefore, no question of the department having to hold an
·enquiry and then only to decide not to promote the appellant to the
higher post.
Again no question of breach of the principles -0f
natural justice arises in such a situation.
· The appellant also cannot challenge his non-promotion on the
ground of seniority alone.
~t appears. that the JJ?St of a Member
was declared to be a selection post by the President as early as
1952. That deCisiori is evidenced by the letter dated Mar.::h 15,
1952, Appendix ID to the. counter-affidavit of the respondents il1
Writ Petitioo No. 608/D of 1966. By rules made by the President under Art. 309, dated November 6, 1965, the post of the
Member along with certain other posts was once again declared
to be a selection post. The respondents' counter-affidavit clearly
affirms that the post was a selection post and that when A~wath
was appointed to that post in December 1964. the selection made
from amongst the candidates was on an all India basis and not on
the footing that the post was one where appointment was to be
made on the basis of seniority in the Dep~ent a!one. 'The
appellant has not shown that the statement in the smd letter of
March 15, 1952 that the President had declared the post of
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Member a selection post was not correct or that that declaration
was not under Art. 309.
For such a challenge the burden of
proof was upon him, a burden which .he has not dischargt:d, We
are, therefore, bound on the material brought by him on record
to proceed on the footing that the post of a Member was a selection
post since 1952, and therefore, the fact of his being the seniormost amongst the directors in the department did not by itself
entitle him to be appointed.
The appellant's contention that Aswath ought not to have
been appointed first to the post of Director (Selection Grade) and
then as a Member as there were allegations of financial irregularities against him was denied by the respondents. The contention ·
involves questions of disputed facts.
We do not think that the
circumstances of the present case make it necessary for us to
undertake the task of inquiring into such disputed facts which
require leading considerable additional evidence by
both the
parties. But assuming that there were allegations made against
that officer, both the Promotion Committee and the Public Ser\'ice
Commission were competent to take that fact into consideratior.
a;nd assess its worth. On the materials on record we can hardly
be called upon to arrive at any such assessment and substitute our
opinion in place of theirs. We cannot consequently accede to the
. appellant's contention that his non-promotion to fhe
aforesaid
superior posts or either of them was vitiated for any of the reasons
advanced by him.
On the question of non-promotion, the appellant had demanded disclosure of the proceedings before the Promotion Committee,
which demand was resisted by the respondents by claiming privilege. In our opinion it is not necessary to go in tl1is case into· the
vexed question of privilege, firstly, because the demand for disclosure was in the nature of a fishing inquiry into the papers relating to the proceedings of that Committee, and secondly, because
the adverse confidential reports, which, according to the appellant,
were responsible for the Committee's refusal to recommend l)is
name, were communicated to the appellant and have been oroduced by him. The demand for disclosure of those proceedings,
therefore, cannot be entertained as a bona fide demand.
There now remains his allegation of ma/a {ides.
In Writ
Petition 15 50 of 1967 relating to the order of compulsory retirement the appellant had stated that in order that this allegation
may be properly appreciated he would set out in one
consolidated statement, Ex. G to that petition, all the incidents on
which he relied upon to prove his case of mala {ides. The allegations collected· in that exhibit briefly stated are as follows : (i)
that he was declared unfit for promotion to favour As\\ ath in
~pite of a warning having been given to him for financial irregula-
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SUPREME COURT REPORTS
[1971]2 S.C.ll.
nues, that the said Aswath resigned and left for the U.S.A. as
soon as the appellant took resort to the court and that some
higher authorities were also involved in those irregularities; (2)
that though the Promotion Committee met in 1963 no promotions
were recommended; that this was "presumably" done
becawse
Aswath could not then be promoted on account of the ;aid warning; ( 3) that there was no adverse confidential report against the
appellant for 1963; therefore, when the Promotion Committee met
in 1964, his grading could not be reduced.
Yet, he was superseded, in spite of his being the only permanent director, by three
officers. who had not yet been confinned as directors. "Pre>umably"
he was declared unfit for promotion as the said Aswath did !J.Ot
get a grading higher than "good"; that the post of Member was
filled in by direct recruitment and not by promotion "presumably"
because the Promotion Committee was prejudiced against him as
he had taken recourse to the court and desired that lie should be
superseded by Aswath; ( 5) that the appellant was desirous of
ascertaining whether those who made and confirmed
adverse
entries against hiJn were also involved in the· said alleged financial
irregularities and whether they sat on the Promotion Committee
which declared h.im unfit for promotion; ( 6) that as. he was superseded by three officers who were not yet confinned as directors
he applied for the reasons for withholding promotion from hi111.
Instead of furnishing those reasons the appellant was given threats
and a transfer order which had the effect of his having. to work
under Aswath, the said two adverse reports and finally the order
of compulsory retirement; (7) that though he called for the files
relating to the said transfer orders to ascertain if he had been
shown responsible for the failures of the reporting officer, V. Venugopalan, their production was refused on· the plea of privilege;
(8) that in 1958, the appellant complained agamst the Administrative Officer, dne Dhawan, and demanded a disciplinary enquiry
against him, that no action was taken against that officer and the
appellant "fears" that some grave irregularities v.-ere made in that
case "and the same are being used to prejudice the authorities
against him". He called for the connected file. but it> production.
was refused on the ground of privilege; (9) that in the matter
of Dhawan, the appellant's personal as~istant, one Nidkan Singh,
was asked to disclose the evidence which the appellant had collected against Dhawan, that Nidhan Singh was victi1nised for his
refusal to do so, and therefore, successfully filed two writ petitions,
that while one of them was pending, one\ K. P. S. Nair and the
said Venugopalan asked the appellant to file false affidavits which
the appelant refused; ( 10) that the work of the api;ellant in each of
the directorates where he worked was satisfactory though the
volume of work was increased and the minimum essential' sta1f
was not made available to him, that though there were no -cauaes
for complaint against him, the appellant was served with the order
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67
compulsorily retiring him; (ii) that the adverse confidmrial report
for 1964 was put up before the Promotion Committee montlla
before it was communicated to him resulting in withholding of
bis promotion; ( 12) that 1Wder the regulations made under Art.
320 of the Constitution the appellant's case for promotion ball
11ot to be placed either before the Promotion Committee or Ibo
Public Service Commission. The President's order declaring die
superior posts for which the appellant was eligible as lekcrioB
posts was made months after the selection by those bodies. The
11aid posts not being selection posts then, if the appella:it was to
be denied promotion a departmental enquiry was necessaiy under
a. 16 of the Central Civil Services Rules, ·1965; and (13) that
while the present writ petitions, were still pending, he was asked
to vacate the premises occupied by him and the allotment thereof
ill his favour was cancelled.
In the counter-affidavit filed by the Under Secretary to the
Ministry of Irrigation and Power it is denied that Aswath was
promoted to the post of the Member, the respondents' case being
that the post was a selection post and 1Aswath was appointed in.
that post on the basis of an all India selection by the Union
Public Service Commission.
The selection was made on merits
•with due regard to seniority and not seniority alone,
and the
appellant was not appointed to that post because the Commission
did not find him fit enough for that post.
The counter-affidavit
denied that Aswath had committed any financial irregularities or
that he had resigned or left India because of any such alleged
irregularities. He resigned and went to U.S.A. to take up a more
remunerative post.
Barring a bare allegation, no materials are
bcought on record by the appellant to prove the alleged irregularities by Aswath or his having resigned and left this country on
account of any such alleged irregularities or of any action having.
been taken against him. There is also no material on record to·
justify the allegation that "some higher authorities" were
also
involved in those alleged irregularities.
Allegations 2, 3 and 4
are merely conjectures on the appellant's part and are not based
en facts. There is no material on record to show that Aswath was
gi"en any warning or that the Promotion Committee
did
net
recommend any promotions in 1963 because, in consequence of
such an alleged warning. Aswath could not be promoted in that
year.
The counter-affidavit concedes that there was no adverse
confidential report against the appellant for the year 1963. It
also concedes that amongst the directors the appellant was the
only confinned director.
The respondents' case, however, was
that promotions to the higher posts, such as that of the Director
{Sdection Grade), Deputy Chief Engineer, Member etc., were
made on merits with due regard to seniority and not seniority
alone, as those higher posts were selection posts. Appointment
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SUPREME COURT REPORTS
[1971]2
: to those posts were made on the basis of recommendations by ih.e
Promotion Committee, who made such recommendations · i;tftei:
considering the comparative merits of persons who were eligible.
The fact that the appellant was senior to the rest of the directors
did not, therefore, mean that he had for that reason alone to be
recommended.
The allegation that the Promotion Committee
was prejudiced against him besause .he had taken resort to the
court cannot be seriously taken. There is no averment as to who
amongst the members of that Committee were prejudiced against
him as alleged, or whether and how they were affected by his
having gone to the court.