A. GOPAKUMAR v. LIFE INSURANCE CORPORATION OF INDIA

**C.R** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **THURSDAY, THE 19TH DAY OF NOVEMBER 2020 / 28TH KARTHIKA, 1942** ## **WP(C).No.33229 OF 2014(C)** ## **PETITIONER :** **A.GOPAKUMAR, S/O. P.ACHUTHAN NAIR, DEVELOPMENT OFFICER, LIFE INSURANCE CORPORATION OF INDIA, PUNALUR BRANCH, RESIDING AT T.C.16/393(2), EVRA 517, THYCAUD P.O., THIRUVANANTHAPURAM.** **BY ADVS.** **SRI.K.GOPALAKRISHNA KURUP (SR.) SRI.ABHISHEK KURIAN SMT.ANUROOPA JAYADEVAN SHRI.ASHRUTH NASER** ## **RESPONDENTS :** **1 LIFE INSURANCE CORPORATION OF INDIA, REPRESENTED BY ITS ZONAL MANAGER, SOUTHERN ZONAL OFFICE, PB NO. 2450, ANNA SALAI, CHENNAI – 600 002. 2 REGIONAL MANAGER (MARKETING), LIFE INSURANCE CORPORATION OF INDIA, ZONAL OFFICE, MARKETING DEPARTMENT, LIC BUILDING, 7TH FLOOR, 153-ANNA SALAI, CHENNAI. 3 THE SENIOR DIVISIONAL MANAGER, LIFE INSURANCE CORPORATION OF INDIA, DIVISIONAL OFFICE, THIRUVANANTHAPURAM-600002. 4 THE CHIEF MANAGER, LIFE INSURANCE CORPORATION OF INDIA, PUNALUR BRANCH, PUNALUR - 691 305.** **BY ADV. SRI.C.S.RAMANATHAN BY ADV. SRI.K.MOHANAKANNAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-11-2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.33229 OF 2014(C)** 2 **C.R.** ## **JUDGMENT** Dated this the 19[th] day of November 2020 A Development Officer with the Life Insurance Corporation of India, who claims to have performed exceedingly well during the period 2000-01 till 2014-15, alleges that he has been wrongly denied promotion. He claims that he was deprived of an opportunity to participate in the promotion interview solely on the ground that, in one of the Confidential Reports (for the period 2012-13), his performance is shown as 'below average'. Alleging that this entry in his confidential report was never put to him, nor was he intimated about such an adverse entry, he has preferred this writ petition seeking a direction that he be considered for promotion to the post of Assistant Branch Manager (Sales) after ignoring the adverse entry in the Confidential Report for the period 2012-13. 2. Petitioner joined the LIC as a Development Officer in 1989. While so by Ext.P3 dated 20.12.2013, notification was issued, intimating promotions to be carried out to the cadre of Assistant Branch Manager (Sales). Petitioner applied for being considered for promotion. He was not called for the interview. He sought for the reasons. By Ext.P8, he was informed by a vague reply that **WP(C).No.33229 OF 2014(C)** 3 promotions are considered on the basis of various parameters. 3. The rules for promotion of Development Officers to the cadre of Assistant Branch Managers (Sales) are dealt with in the Life Insurance Corporation of India, promotion of Development Officers to the cadre of ABM (S) (Amendment) Rules, 2009 (for short Rules). Rule (E)(6) of the Rules states that the “Annual Confidential Report for the last three years will be taken for consideration for promotion. Those Development Officers, who obtain average and above rating in the three CRs shall be eligible”. Since the parameter was the confidential reports, petitioner applied to obtain the confidential reports for the years 2003-04 till 2013-14. Ext.P9 series are the copies of the confidential reports so obtained under the RTI Act for the aforesaid period. Ext.P9(k) is the special confidential report relating to the petitioner that was given by a superior officer for consideration for promotion to the cadre of ABM (Sales). Relying upon the confidential reports, petitioner contends that he ought to have been considered for promotion and denying him of even an invitation for the interview has caused great prejudice to him and is arbitrary and violative of Article 14 of the Constitution of India. It is submitted that the representation filed as Ext.P10 has been completely ignored by the respondents, causing great prejudice to the **WP(C).No.33229 OF 2014(C)** 4 petitioner. 4. The respondents have filed a counter affidavit stating that promotions are carried out on the basis of consideration of confidential reports for three years and that for the year 2012-13, petitioner's confidential report showed a 'below average' overall rating. It is further stated that during the period 2012-13, he had recruited only one agent while he had, at the same time terminated 11 of his agents. The counter affidavit further pleads that, keeping in view the fact that the development officers have no fixed hours of work, they are judged, unlike other regular class of employees, by reference to the business that they bring in. It is also stated that the petitioner himself is aware about his performance for the years and hence there is no need to communicate the contents of the Confidential Reports. An additional counter affidavit is also filed on behalf of respondents 1 to 4 stating that the rating of performance of the petitioner as below average is based on the personal judgment of the superior officer and the same cannot be influenced externally and no instructions can be given as to how a subordinate officer should be judged. It is also referred that the view of the reviewing officer in a confidential report cannot be the subject matter of judicial review under Article 226 of the Constitution of India and that petitioner's performance was scrutinized **WP(C).No.33229 OF 2014(C)** **==> picture [7 x 7] intentionally omitted <==** and since his performance was below average, he was not called for the interview. It is further stated that the petitioner had not applied for promotion for the period after 2012-13, which itself shows his adamant nature. 5. In the reply affidavit petitioner refers to his consistent performance, incentive bonus received by him and the business details to prove his exceptional performance even during the period under reckoning and states that the adverse entry in his ACR was not justified. Petitioner claimed that he was performing very well even during the said periods and that the entry 'below average' in his ACR for the year 2012-13 is not justified. Petitioner claimed that he was one of the highest ranked Development Officers in terms of business, in the entire division. 6. I have heard the learned Senior counsel Sri.K.Gopalakrishna Kurup assisted by Adv.Ashruth Naser for the petitioner and Adv.K.Mohanakannan for the respondents. 7. The learned Senior counsel vehemently contended that Ext.P9 series of confidential reports will reveal the exceptional performance of the petitioner in all the years wherein he was often regarded as 'outstanding', except for the year 2012-13. Though the learned Senior counsel contradicts the entry 'below average' in **WP(C).No.33229 OF 2014(C)** 6 Ex.P9(i) relating to the year 2012-13, he submits that any adverse entry in the Confidential Report ought to have been communicated to the petitioner and his views elicited before relying upon such an adverse entry to deny promotion or even consideration for promotion. Relying upon the decision in _**Dev Dutt v. Union of India and Others**_ _**[(2008) 8 SCC 725]**_ , it was submitted that there was a complete failure to follow the law laid down in the said decision warranting interference with the denial of promotion to the petitioner. 8. Adv.K.Mohanakannan, on the contrary submits that promotion is granted after considering various parameters. Since his confidential report had an adverse entry, as per Ext.R1(a) Rules, he could not be considered. He, further submitted that in the absence of allegation of _mala fides_ against the officer who wrote the Confidential Reports, the entries made by the superior officer cannot be ignored. The performance of the petitioner was below par and when a superior officer make such an observation, it cannot be reviewed under Article 226 of the Constitution of India. He seeks for dismissal of the writ petition. 9. The rival contentions are considered. A perusal of Ext.P9 series shows that the petitioner was all along regarded as an outstanding performer and was always found fit for promotion. The **WP(C).No.33229 OF 2014(C)** 7 entries in the CRs for the various years reflect “outstanding” and “well above average” performance by the petitioner. 10. The following entries from petitioner's annual confidential reports relating to his “overall rating” and “whether suitable for promotion” is extracted from Ext.P9 series as below : |**Year**|**Overall Rating **|**Whether fit forpromotion**| |---|---|---| |2003-04|Outstanding|Yes byall means| |2004-05|Very successful|Yes.<br>Suitable<br>for<br>holding<br>responsibilities of a higher cadre| |2005-06|Excellent|Yes| |2006-07|Outstanding|Yes| |2007-08|Outstanding|He is suitable for the post of higher<br>cadre| |2008-09|Well<br>above<br>average|Yes| |2009-10|Well<br>above<br>average|Yes| |2010-11|Well<br>above<br>average|Yes| |2011-12|Well<br>above<br>average|Yes| |2012-13|Below average|The Development Officer has not<br>conducted any field activity in the<br>last review year. It is observed<br>that<br>even<br>important<br>communications are not passed to<br>his own agents. He has shown a<br>total negative approach to branch<br>business goals. <br>As such,<br>considering the performance and<br>attitude of the Development Officer<br>he is not fit for higher cadre| |2013-14|Outstanding|Yes. He is fit for any higher cadre<br>in LIC| **WP(C).No.33229 OF 2014(C)** 8 11. The criteria for promotion being 'average' and above, it can be seen from the extracted entries from petitioner's ACR that the only entry indicating a below par performance was in 2012-13. The period of 3 years reckoned for his promotion was 2010-11, 2011-12, and 2012-13. 12. For the year 2012-13, petitioner's performance was shown as 'below average' and that he is not fit for promotion to a higher cadre. The subsequent years' performance i.e.for the year 2013-14 is also shown as outstanding and he is fit for higher cadre in the LIC. The special Confidential Report for consideration for promotion which is produced as Ext.P9(k) shows that the petitioner was recommended for promotion. Thus, out of a period of 12 years, petitioner was found to be eminently fit for promotion in 11 years except for one year, where he was found below average. Unfortunately for the petitioner that one year, where he was noted as below average, was one of the years of reckoning for promotion, since the rules provided for a consideration of three years' CRs with average and above rating required. Thus one lone years entry in ACR was used to deny him, even an opportunity to participate in the consideration for promotion. **WP(C).No.33229 OF 2014(C)** 9 13. When an adverse entry is made in a Confidential Report, it is essential that before such an adverse entry is relied upon, the officer be intimated about such an adverse entry and given a chance to represent or object to it. The decisions on the aforesaid proposition are galore. The decision in _**Dev Dutt**_ 's case (supra) is sufficient to bring home the point as stated above. After referring to many decisions rendered on the legal proposition, the Supreme Court held that _“fairness and transparency in public administration requires that all entries (whether poor, fair, average, good or very good) 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 so that he can make a representation for its upgradation”_ . It was further held in para 13 that _“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 benchmark or not. Even if there is no benchmark, 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_ **WP(C).No.33229 OF 2014(C)** 10 _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_ . It is also stated that this principle will apply to all statutory authorities also, including public sector corporations and other instrumentalities of the state. The Supreme Court went on to hold that 'one may not have the right to promotion, but one has the right to be considered for promotion.' 14. A three Judge Bench judgment of the Supreme Court in ## _**Abhijith Ghosh Dastidar v. Union of India and Others [(2009)**_ _**16 SCC 146]**_ , after noticing the judgment in _**Dev Dutt'**_ s case (supra) held that _“when the benchmark required for promotion was “very good” and the candidate was given the entry “good” in one year while in the previous year the entry in his ACR was “very good” the entry of “good” ought to have been communicated to him. It was also held that failure to communicate such an entry is arbitrary and violative of Article 14 of the Constitution of India as it has civil consequences like affecting his chances for promotion or getting other benefits._ The Supreme Court went on to hold that _“since the nature of entry had not been informed to the employee, that entry should not have been taken into consideration for being considered for promotion to the_ **WP(C).No.33229 OF 2014(C)** 11 ## _higher grade”._ 15. It is thus clear that it is not the nomenclature or phraseology of the entry which makes it adverse. It is the effect of the entry on his chances of promotion or for obtaining other benefits that determine whether an entry in the annual confidential report is adverse or not. When, an entry under any nomenclature or phraseology can be termed as adverse, in the absence of communication of such an entry to the employee, within a reasonable time, to enable him to represent against it, such an adverse entry ought to be eschewed from consideration or ignored. The uncommunicated adverse entry shall not form the foundation to deny any benefits due to the employee. When there remains an uncommunicated adverse entry against an employee, that entry ought to be ignored. 16. Since the petitioner's right to be considered for promotion has been denied to him, solely on the ground of the adverse entry for the year 2012-13, which was never communicated to him, serious prejudice has been caused to the petitioner. A corollary of the finding in the judgment of the Supreme Court in _**Dev Dutt**_ 's case (supra) and _**Abhijith Ghosh Dastidar**_ 's case (supra) is that no Confidential report containing an adverse entry, which has not **WP(C).No.33229 OF 2014(C)** 12 been communicated to the employee concerned could be used against him. It cannot also be used to deny him the promotion. Taking note of the aforesaid position of law, this Court finds that non-consideration of the petitioner for promotion to the post of Assistant Branch Manager was arbitrary and violative of Article 14 of the Constitution of India. 17. Even Ext.P10 representation was not considered by the respondents or a decision taken immediately thereon. The petitioner had even invited the attention of the respondents to the decision in _**Dev Dutt**_ 's case (supra). Still he was denied of an opportunity to participate in the promotion. In view of the above, I find that the adverse entry made in Ext.P9(i) could not have been used against the petitioner for denying him an opportunity to participate in the promotion. 18. Even though the learned counsel for the respondents in conclusion, had submitted alternatively that, the representation of the petitioner filed as Ext.P10 can be considered, I am of the view that, in the nature of the findings entered into in this judgment, such a direction will not be in tune with the reasoning in this judgment. An uncommunicated adverse entry ought to be eschewed or ignored from consideration. In the aforesaid circumstances, respondents No.1 to 3 are **WP(C).No.33229 OF 2014(C)** **==> picture [13 x 7] intentionally omitted <==** directed to consider the petitioner for promotion to the post of Assistant Branch Manager (sales), ignoring the adverse entry in the Annual Confidential Report of the petitioner for the year 2012-13. The consideration directed above shall be done within a period of three months from the date of receipt of a copy of this judgment. In the event of the petitioner being found eligible for promotion, appropriate orders shall be issued immediately thereafter. The original petition is allowed as above. In the nature of the circumstances, there shall be no order as to cost. Sd/- **BECHU KURIAN THOMAS, JUDGE** RKM **WP(C).No.33229 OF 2014(C)** 14 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE LIFE INSURANCE CORPORATION OF INDIA DEVELOPMENT OFFICERS (REVISION OF CERTAIN TERMS AND CONDITIONS OF SERVICE) RULES, 2009.** - **EXHIBIT P2 TRUE COPY OF THE CHAPTER-II OF THE LIC OF INDIA (STAFF) REGULATIONS ALONG WITH THE SCHEDULE-1 APPENDED TO THE SAME.** **EXHIBIT P3 TRUE COPY OF NOTIFICATION DATED 20.12.2013 ISSUED BY THE 1ST RESPONDENT EXHIBIT P4 TRUE COPY OF THE COMMUNICATION DATED 14.3.2014 SHOWING THE DETAILS OF THE COST RATIO FOR THE APPRAISAL YEARS FROM 20042005 TO 2012-2013.** **EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 20.2.2014 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT. EXHIBIT P6 TRUE COPY OF THE REPRESENTATION DATED 28.3.2014 SUBMITTED BY THE PETITIONER BEFORE THE ZONAL MANAGER, 1ST RESPONDENT.** **EXHIBIT P7 TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE SENIOR DIVISIONAL MANAGER DATED 10.3.2014. EXHIBIT P8 TRUE COPY OF THE LETTER DATED 10.3.2014 ISSUED BY THE CHIEF MANAGER, 4TH RESPONDENT. EXHIBIT P9 TRUE COPY OF THE ANNUAL CONFIDENTIAL REPORT OF THE PETITIONER FOR THE YER 2003-04. EXHIBIT P9(a) TRUE COPY OF THE ANNUAL CONFIDENTIAL REPORT OF THE PETITIONER FOR THE YER 2004-05. EXHIBIT P9(b) TRUE COPY OF THE ANNUAL CONFIDENTIAL REPORT OF THE PETITIONER FOR THE YEAR 2005-06. EXHIBIT P9(C) TRUE COPY OF THE ANNUAL CONFIDENTIAL REPORT OF THE PETITIONER FOR THE YEAR 2006-07.** 15 ## **WP(C).No.33229 OF 2014(C)** **EXHIBIT P9(D)** **TRUE COPY OF THE ANNUAL CONFIDENTIAL REPORT OF THE PETITIONER FOR THE YEAR 2007-08.** - **EXHIBIT P9(E)** - **TRUE COPY OF THE ANNUAL CONFIDENTIAL REPORT OF THE PETITIONER FOR THE YEAR 2008-09.** - **EXHIBIT P9(F)** - **TRUE COPY OF THE ANNUAL CONFIDENTIAL REPORT OF THE PETITIONER FOR THE YEAR 2009-10.** - **EXHIBIT P9(G)** - **TRUE COPY OF THE ANNUAL CONFIDENTIAL REPORT OF THE PETITIONER FOR THE YEAR 2010-11.** - **EXHIBIT P9(H)** - **TRUE COPY OF THE ANNUAL CONFIDENTIAL REPORT OF THE PETITIONER FOR THE YEAR 2011-12.** - **EXHIBIT P9(I) TRUE COPY OF THE ANNUAL CONFIDENTIAL REPORT OF THE PETITIONER FOR THE YEAR 2012-13.** - **EXHIBIT P9(J) TRUE COPY OF THE ANNUAL CONFIDENTIAL REPORT OF THE PETITIONER FOR THE YEAR 2013-14** - **EXHIBIT P9(K)** - **TRUE COPY OF THE SPECIAL CONFIDENTIAL REPORT SUPPLIED TO THE PETITIONER.** - **EXHIBIT P10 TRUE COPY OF THE REPRESENTATION DATED 19.4.2014 SUBMITTED BY THE PETITIONER BEFORE THE SENIOR DIVISIONAL MANAGER, LIC.** - **RESPONDENTS' EXHIBITS:** - **EXHIBIT-R1(A)** **TRUE COPY OF THE RULES FOR PROMOTION OF DEVELOPMENT OFFICERS TO THE CADRE OF ASSISTANT BRANCH MANAGER (SALES) 2013-14**