UNION OF INDIA Vs. JOSEPH K.S.

JUDGEMENT

(1.) Over the ages, jurists of unquestionable eminence have instructed that the life of law is not logic; but it does not follow that law is illogical or that it may defy common sense.

(2.) The appellants herein, on the strength of high authorities that have ruled the field for decades, seek to suggest as absolute a legal proposition that jars at first blush. The appellants read such judicial precedents that cannot be questioned at this level to suggest that even though a government employee must be made aware of every adverse remark in his ACR that may stand in the way of his candidature being considered for future promotion; but when such adverse remark may result in the services of the concerned employee not being retained after the completion of a specified number of years in service or upon the employee attaining a specific age, the communication of such adverse remark is not mandatory and may be dispensed with. Quite plainly, it would not stand to reason that a higher right is conferred when it comes to the denial of consideration for promotion, than when the employee faces what is effectively a premature termination of service. Of course, compulsory retirement in the usual course as per the applicable service rules cannot be seen to be a punishment but, surely, the prejudice suffered by an employee who is required to compulsorily retire is no less - and is probably more - than when there is denial of consideration for promotion.

(3.) The question that arises for consideration is whether the service jurisprudence that has developed in this country makes such a distinction between promotion and compulsory retirement to the extent that an adverse remark that is capable of denying the concerned employee the opportunity of being considered for promotion has perforce to be communicated to him for him to have an opportunity to make a representation thereagainst; but, even if an adverse remark in the ACR or any action taken against him may invariably result in the employee being compulsorily retired (at a specified level and not by way of punishment), such adverse remark or action taken against him need not be informed to the concerned employee for him to have a chance to seek a review or reversal thereof.