It has to be conceded right at the outset that the Supreme Court has by a catena of decisions in recent years sought to send out a loud and unequivocal message to the entire nation that death sentence shall not be imposed at the drop of a hat and it will be awarded only when the alternative option is unquestionably foreclosed. In this landmark, latest and laudable judgment also, the Supreme Court has sought to reiterate this in no uncertain terms. Human rights activists have welcomed this progressive mode of awarding punishment!

                                 Needless to say, the Apex Court three-Judge Bench comprising of Justice Sharad A Bobde, Justice L. Nageswara Rao and Justice R Subhash Reddy in this latest, laudable and landmark judgment titled Raju Jagdish Paswan v. The State of Maharashtra in Criminal Appeal Nos. 88-89 of 2019 (Arising out of SLP (Cri.) Nos. 5422-5423 of 2013) has commuted the death penalty of a man accused of rape and murder of a nine year old girl and sentenced him to 30 years imprisonment without remission. The Bench has observed clearly and categorically that, even though the murder involves exceptional depravity and the manner of commission of the crime is extremely brutal, a death sentence can be imposed only when the alternative option is unquestionably foreclosed. The Bench took note of the mitigating circumstances and rightly concluded that the accused does not deserve the sentence of death and the case does not fall within the rarest of rare cases.

                                To start with, para 1 first and foremost sets the ball rolling by observing that, “The issue that arises in these Appeals is whether the death penalty imposed on the Appellant is disproportionate to the crime committed by him.” Death penalty is not an ordinary punishment and before awarding it, the courts are expected to examine all the mitigating circumstances and then decide upon it. So the Apex Court Bench here too decided to examine the mitigating circumstances in detail.

                  To recapitulate, the Apex Court Bench then observed explicitly in para 2 while narrating the facts of this present case that, “At 20.45 hrs on 21.06.2010, Hanmant Sheshrau Shirsat gave a statement in the Miraj Rural Police Station that his daughter who was 9 years old and studying in the 4th standard at Shri Samarth Ashram School, Bedag was missing since 10.00 am. He stated that he could not find his daughter when he went to the school to bring her home at 5.15 pm on that day. He was informed by her class teacher that his daughter did not come to school. Shirsat started searching for his missing daughter. Akash (PW-4), a boy residing behind Marguaai Temple and his sister Pooja gave information that Shirsat’s daughter was taken by a person wearing black pant and black shirt to the sugarcane field ahead of Odya village. Shirsat accompanied the police in the search for his daughter in the sugarcane field where they found her school record book. On further inquiries made in the village, Sidram Sakharam Khade (PW-13) who owns a provision store at Bedag informed that he spotted a person wearing black clothes who came to his shop to buy tobacco. The villagers and the police reached Balakrishna Poultry Farm and inquired about the person wearing black clothes. It is relevant to state that Shirsat is also working in Balakrishna Poultry Farm. The Appellant initially denied any knowledge about the missing girl. However, on further interrogation by the police, he revealed that the girl was dragged to the nearby sugarcane field by closing her mouth tightly to stop her from screaming. He forcibly raped her and then pushed her into a nearby well. A search was conducted to find the body from the well which was unsuccessful. The police summoned an experienced driver Balu Mahadeo Patil (PW-5) who took out the dead body from the well. Shirsat identified the dead body to be that of his daughter. An FIR was registered under Section 302, 376, 201 of the Indian Penal Code, 1860 (hereinafter ‘IPC’). Postmortem was conducted by PW-3 Dr. Sunil Patil and PW-9 Dr. Juber Momin. They have stated in their evidence that froth was coming out of the mouth of the deceased and there was nasal bleeding as well. They found cutis anserine on both palms and sole of the feet. They also found that the mucosa of vagina was congested and redness present over mucosa of anus with congestion. There was a recent complete rupture of hymen. Some sticky liquid was coming out of the mouth of the deceased. All the injuries were found to be ante-mortem. The Doctors deposed that there was evidence of vaginal as well as anal intercourse. The course of death was stated to be drowning.”      

                                      On the face of it, what we then see is that in para 3, all the aggravating and mitigating circumstances are stated which the trial court took into account before sentencing the appellant. Para 3 states that, “After examining the evidence on record, the trial court convicted the Appellant under Sections 302, 376 (2) (f) and 201 IPC. The trial court considered the following aggravating and mitigating circumstances before sentencing the Appellant:

i.                  Accused was serving in the same factory where the victim’s father was serving and residing in the same factory premises.

ii.               There is strong circumstance of accused knowing the school timing of the victim and the fact that she used to go to school alone, which is far away from factory premises.

iii.            The road from village to factory has less traffic.

iv.            The girl was taken from Marguaai Temple to the sugarcane field. The distance is approximately 1 km.

v.               The height of the sugarcane in the field can be seen from the photographs on record. It makes the inside things not visible from the road going nearby.

vi.            Accused had natural as well as unnatural sexual intercourse with the girl, which resulted in the girl becoming unconscious.

vii.         Accused had pressed her mouth and nose in such a way that froth had come out of her mouth and there was nasal bleeding.

viii.      Accused had then taken the girl in unconscious state to the well at a distance of 150 sq. ft. away from the place of rape and then thrown her into the well.

ix.            The throwing of the girl in unconscious state in the well was with knowledge or reasonably given knowledge that death will occur. The said act was done in order to screen himself.

x.               There was no enmity between informant and accused.

xi.            No reasonable ground has been shown for alleged false implication.

xii.         The defence of false implication is unbelievable and unsustainable. Informant was not in any way connected to any political party, who had conducted agitation against Bihari persons.

xiii.      The minor child was helpless when the accused committed the cruel act.

xiv.      The girl was aged 9 years only and was innocent.

xv.         The girl was required to go through the torture as is evident from medical evidence.

The mitigating circumstance are almost nil. If at all they are to be searched then they are-

(i)                         Age of the accused is 22 years.

(ii)                      Case rests on circumstantial evidence.”

                                    Truth be told, it is then held in para 4 that, “By holding that the Appellant does not deserve any leniency in view of the heinous crime committed by him, the trial court sentenced the Appellant to be hanged by neck till his death for an offence under Section 302 IPC. The Appellant was also convicted for an offence punishable under Section 376(2)(f) of IPC and sentenced for life and under Section 201 IPC for an imprisonment of 7 years.”

                                   Going ahead, it is then observed in para 5 that, “The trial court made a reference to the High Court for confirmation of the death sentence awarded to the Appellant in accordance with Section 366 CrPC. After re-appreciation of the evidence on record, the High Court affirmed the conviction of the Appellant under Sections 302, 376 (2)(f) and 201 IPC. The High Court held that the Appellant was responsible for the horrendous crime of rape and murder of a 9 year old girl. The High Court observed that the Appellant threw the victim in the well while she was still alive and the victim died due to drowning. By observing that the Appellant did not show any compunction, regret or remorse after committing a gruesome and heinous act on a hapless child, the High Court was of the opinion that no leniency could be shown to the Appellant. A detailed examination of the aggravating and mitigating circumstances was carried out by the High Court before confirming the sentence of death imposed by the trial court for an offence under Section 302 IPC.”

                                Be it noted, it is then observed in para 6 that, “Notice was issued in this case on 08.07.2013 limited to the sentence. We have heard the learned counsel for the Appellant and the State on the justifiability of the sentence of death. The learned counsel for the Appellant took us through the evidence on record to support his submission that the entire case rests on circumstantial evidence and the circumstances proved do not warrant death penalty.”

                                 As it turned out, it is then clearly and convincingly held in para 7 that, “The maintenance of peace, order and security is one of the oldest functions of the civil society. The imposition of penal sanctions on those who have infringed the rules by which a society has bound itself are a matter of legitimate interest to the members of the society. [Tom Bingham, The Business of Judging Selected Essays & Speeches (Oxford United Press, 2005), p. 299] Punishment is the just desert of an offender. The society punishes not because it has the moral right to give offenders what they deserve, but also because punishment will yield social useful consequences: the protection of society by incapacitating criminals, the rehabilitation of past offenders, or the deterrence of potential wrongdoers. [Bruce W. Gilchrist, “Disproportionality in Sentences of Imprisonment”, Columbia Law Review, Vol. 79 No. 6 (Oct. 1979), pp. 1119-1167] The purposes of criminal sentencing have traditionally been said to be retribution, deterrence and rehabilitation. To these there may now perhaps be added: incapacitation (i.e. putting it out of the power of the offender to commit further offences) and the maintenance of public confidence. [Tom Bingham, The Business of Judging Selected Essays & Speeches (Oxford United Press, 2005), p. 302]”.

                               To put things in perspective, para 8 while elaborating on the earlier landmark decisions by the Apex Court states that, “The punishment prescribed under Section 302 IPC for committing a murder is death or imprisonment for life. This Court in Jagmohan Singh v. State of Uttar Pradesh [(1973) 1 SCC 20] turned down the challenge to Section 302 IPC which prescribes the sentence of death for murder. It became necessary for this Court to reconsider the validity of Section 302 IPC in view of certain findings of Justice V.R. Krishna Iyer, speaking for the majority in Rajendra Prasad v. State of U.P. [(1979) 3 SCC 646] being contrary to the judgment of the Constitution Bench in Jagmohan’s case (supra). This Court in Bachan Singh v. State of Punjab [(1980) 2 SCC 684] concluded that Section 302 providing death penalty for the offence of murder is unconstitutional. Another question regarding the sentencing procedure provided in Section 354(3) of the Code of Criminal Procedure, 1973 (CrPC) being unconstitutional in view of the unguided and untrammelled discretion of the court was considered in Bachan Singh’s case (supra). According to Section 354(3) CrPC, when the conviction is for an offence punishable with death or, in the alternative with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence. It was held that imprisonment for life shall be the normal punishment for murder according to the changed legislative policy after introduction of Section 354(3) CrPC and death sentence an exception. It was further held that the sentencing discretion conferred on the courts cannot be said to be untrammelled or unguided. The discretion has to be exercised judiciously in accordance with well-recognized principles crystallised by judicial decisions after balancing all the aggravating and mitigating circumstances. What is the relative weight to be given to the aggravating and mitigating factors depends on the facts and circumstances of the case. More often than not, the aggravating and mitigating factors are so intertwined that it is difficult to give a separate treatment to each of them. [Bachan Singh (supra) 197, 201] A planned murder involving extreme brutality or exceptional depravity and the murder of any member of the armed forces or police force or a public servant were a few circumstances which were categorized as aggravating. The age of the accused, possibility of reformation and rehabilitation of the accused, probability that the accused would not indulge in a criminal act in future, the extreme mental or emotional disturbance due to which the offence was committed, the duress or domination of another person under which the accused committed the offence and the mental unsoundness or incapacity were listed as some of the mitigating circumstances. Every relevant circumstance relating to the crime as well as the criminal has to be considered before imposing a sentence of death under Section 302 IPC. This Court in Bachan Singh’s case (supra) ultimately concluded that life imprisonment is the rule and death sentence is an exception for persons convicted of murder. Taking a life through law’s instrumentality can be done only in the rarest of rare cases when the alternative option is unquestionably foreclosed. The application of the rule of the rarest of rare in Bachan Singh (supra) was considered by this Court in Machhi Singh & Ors v. State of Punjab. [(1983) 3 SCC 470, 11 33-37]. It was held that the manner and motive for commission of murder, magnitude of the crime, anti-social or abhorrent nature of the crime and the personality of the victim of murder are certain factors which have to be taken into account for deciding whether a case would fall in the category of the rarest of rare cases.”     

                                It cannot be lost on us that while elaborating on the mitigating circumstances due to which death penalty was not imposed, the Apex Court Bench then categorically and convincingly held in para 9 that, “The Appellant dragged a girl of nine years into a sugarcane field, raped her and dumped her in a well. The cause of death according to the medical evidence was signs of recent sexual intercourse with death due to drowning. There is no doubt that the murder involves exceptional depravity which is one of the aggravating circumstances. The manner of commission of the crime is extremely brutal. However, we are of the considered opinion that the Appellant does not deserve the sentence of death in view of the following mitigating circumstances:

a)  On a thorough examination of the offence, we are unable to accept the prosecution version that the murder was committed in a pre-planned manner.

b) The Appellant was a young man aged 22 years at the time of commission of the offence.

c)   There is no evidence produced by the prosecution that the Appellant has the propensity of committing further crimes, causing a continuing threat to the society.

d) The State did not bring on record any evidence to show that the Appellant cannot be reformed and rehabilitated.”

                                To be sure, it is then further observed specifically in para 10 that, “In view of the above, we are unable to agree with the courts below that the sentence of death is appropriate in this case. Applying the guidelines laid down by this Court for sentencing an accused convicted of murder and being mindful that a death sentence can be imposed only when the alternative option is unquestionably foreclosed, we are of the opinion that this case does not fall within the rarest of rare cases.”  

                        Truly speaking, it is then rightly enunciated in para 11 that, “Punishment should be proportionate to the offence. A savage sentence is an anathema to the civilized jurisprudence of Article 21. [(1983) 2 SCC 277, at 284] In Solem v. Helm 463 U.S. 277 (1983), the UJS Supreme Court held that the general principle of proportionality was applicable to a sentence of imprisonment. Helm was sentenced under the Recidivist Statute of South Dakota to undergo imprisonment for life without possibility of parole after being found guilty of uttering a “no account” check for US $ 100. The gravity of the offence and the harshness of the penalty was one of the criteria to be taken into account by the court in its proportionality analysis. Sentence of life imprisonment awarded to Helm was found to be disproportionate to the crime and hence prohibited under the 8th Amendment to the U.S. Constitution. Imposition of capital punishment for rape of an adult woman was found to be ‘grossly disproportionate’ and a violation of the ‘cruel and unusual punishments’ clause in Coker v. Georgia 433 U.S. 584 (1977). In another case, the sentence of death penalty on a participant in a felony which resulted in murder, without any inquiry into the participant’s intention to kill, was held to be violative of the 8th Amendment to the U.S. Constitution because of disproportionality. [Enmund v Florida 458 U.S. 782 (1982)] The U.S. Supreme Court treated this line of authority as an aspect of the death penalty jurisprudence rather than a generalizable aspect of the 8th Amendment to the U.S. Constitution. [Rummel v. Estelle, 445 U.S. 263 (1980)] Justice Scalia who delivered the plurality opinion in Harmelin v. Michigan 501 U.S. 957 (1991) reasserted that the proportionality review is applicable to cases involving death sentence. The principle of proportionality has been recognized by this Court in Vikram Singh @ Vicky v. Union of India (2015) 9 SCC 502, 152.1 wherein it was stated that punishment must be proportionate to the nature and gravity of offences.”  

                            Regarding imprisonment for life, it is then made absolutely clear in para 12 that, “Though imprisonment for life is a sentence for the rest of the convict’s life, in practice, it amounted to 12 years imprisonment prior to the introduction of Section 433-A, CrPC. After the insertion of Section 433-A, CrPC, imprisonment for life works out to 14 years. In Swamy Shraddananda’s case [Swamy Shraddananda @ Murali v. State of Karnataka (2008) 13 SCC 767], it was held that the court is empowered to substitute a death sentence by life imprisonment of a term in excess of 14 years and further directed that the convict must not be released from the prison for the rest of his life or for the actual term specified in the order, as the case may be. While not endorsing the death sentence that was imposed on Swamy Shraddananda, this Court found that since life imprisonment, subject to remission, normally worked out to 14 years, it would be grossly disproportionate and inadequate. The view expressed in Swamy Shraddananda’s case (supra) was upheld in Union of India v. Sriharan and Others (2016) 7 SCC 1 by a Constitution Bench.”

                                More importantly, while not awarding death penalty to appellant but making it clear that the appellant would have to spend 30 years in prison, it is then sought to be clarified in para 13 that, “Though we have already expressed our view that the Appellant does not deserve to be put to death, he is not entitled to be released on completion of 14 years while serving life imprisonment. The brutal sexual assault by the Appellant on the hapless victim of nine years and the grotesque murder of the girl compels us to hold that the release of the Appellant on completion of Appellant on completion of 14 years of imprisonment would not be in the interest of the society. Considering the gravity of the offence and the manner in which it was done, we are of the opinion that the Appellant deserves to be incarcerated for a period of 30 years. To arrive at this conclusion, we have taken into consideration the opinion of this Court in similar cases – Tattu Lodhi v. State of M.P., (2016) 9 SCC 675 (25 years), Selvam v. State, (2014) 12 SCC 274 (30 years), Rajkumar v. State of MP, (2014) 5 SCC 353 (30 yrs), Neel Kumar @ Anil Kumar v State of Haryana, (2012) 5 SCC 766 (30 years), Anil @ Antony v. State of Maharashtra, (2014) 4 SCC 69 (30 years).”  

                                     While underscoring the importance of yoga and meditation and its impact on prisoners, it is then held in para 14 that, “In the case of Rajendra Prasad (supra), the Court had suggested as follows:

     “114. Social defence against murderers is best insured in the short run by caging them but in the long run, the real run, by transformation through re-orientation of the inner man by many methods including neuro-techniques of which we have a rich legacy. If the prison system will talk the native language, we have the yogic treasure to experiment with on high-strung, high-risk murder merchants. Neuroscience stands on the threshold of astounding discoveries. Yoga, in its many forms, seems to hold splendid answers. Meditational technology as a tool of criminology is a nascent – ancient methodology. The State must experiment. It is cheaper to hang than to heal, but Indian life – any human life – is too dear to be swung dead save in extreme circumstances.”

           Taking note of the above suggestion, we asked Mr. Katneshwarkar, learned counsel for the State of Maharashtra, as to what steps were taken by the State for reformation and rehabilitation of the prisoners. An affidavit signed by the Deputy Inspector General of Prisons (Headquarters), Maharashtra was circulated on 27.11.2018 in which it was stated that Circulars were issued to all the Jail Superintendents to start Yoga and meditation classes for improvement of physical and mental health of the inmates in the penitentiaries. It was also stated that the Maharashtra Prison Department has started a programme namely “Prema Path” for which persons like Shri Ram Dev Baba and others were invited to Yerwada Central Prison, Pune for motivating the prisoners to participate in the programmes of Yoga. It was further stated that the Department was encouraging the prisoners to participate in Yoga and meditation and was even giving to prisoners who excelled in Yoga.”   

                              Lamentably, the Apex Court Bench then feels constrained to observe in para 15 that, “In spite of our direction, the Government of India did not file an affidavit regarding the status of rehabilitation of prisoners in jails in this country. As there was no response from the Government of India, we did our own research to find out about the reform and rehabilitation measures. An All India Model Prison Manual Committee was constituted in the month of November, 2000 under the Chairmanship of Director General of Bureau of Police Research and Development (BPR&D) to prepare a Model Prison Law for the superintendence and management of prisons in India in order to maintain uniformity in the working of prisons throughout the country. The Model Prison Manual of 2016 (“2016 Manual”) which was approved by the Ministry of Home Affairs refers to the education of prisoners which is vital for the overall development of prisoners. Para 14.06 of the Chapter 14 in the 2016 Manual deals with the nature of educational programmes which includes physical education such as Yoga, health/hygiene education, moral and spiritual education among others. We do not have any material on record about how many States have adopted the 2016 Manual. We direct the States to consider implementing the reformative and rehabilitation programmes contained in the 2016 Manual. In addition, it is open to the States to adopting any other correctional measures.”     

                                  Finally and most crucially, it is then observed in the last para 16 that, “Accordingly, the Appeals are partly allowed and the sentence of death is set aside. The Appellant shall suffer an imprisonment for a period of 30 years without remission.”

                                   All said and done, one has to appreciate and applaud the manner in which this latest, landmark and laudable judgment has been crafted and most importantly has shown genuine concern even for prisoners and underscored the importance of yoga and meditation in transforming their lives. While it has not awarded death penalty which is considered as most cruel, it has nevertheless ensured that the Appellant who raped a minor and killer her was made to spend at least 30 years in prison without remission. This extremely notable and laudable judgment certainly deserves to be emulated by all the courts from top to bottom! There can be no denying or disputing it!   

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.  

With much satisfaction it has to be remarked right at the outset that in a latest, landmark and laudable judgment by a two-Judge Bench of Apex Court titled Anil Kumar v Union of India and others in Civil Appeal No. 888 of 2019 (arising out of SLP (C) 32073 of 2016) and authored by Justice Dr Dhananjaya Y Chandrachud for himself and Justice Hemant Gupta delivered on January 21, 2019 very clearly and convincingly observed that no authority can claim a privilege not to comply with its judgment. Very rightly so! Who will respect Supreme Court if any authority is given the unfettered and untrammelled power not to comply with the Supreme Court judgment? Can any authority be ever given such power? Certainly not!   

                                Needless to say, the Apex Court Bench made this extremely relevant observation as pointed above while allowing an appeal filed by an employee of the Council for Scientific and Industrial Research. Starting from the scratch, it is first and foremost pointed out in this noteworthy judgment while granting leave that, “The appellant was aggrieved by the rejection of his claim for financial upgradation by the Council for Scientific and Industrial Research (“CSIR”) with effect from 10 May 2011. He was also aggrieved by not being promoted to the post of Senior Controller of Administration/Senior Deputy Secretary in Pay Band-4 i.e. Rs. 37,400-67,000 with a grade pay of Rs. 8700 in respect of vacancies for 2013-2014 under the CSIR Recruitment & Promotion Rules for Administrative Staff, 1982.”

                                          To be sure, it is then pointed out that, “He moved the Central Administrative Tribunal, Chandigarh. The Tribunal did not find any substance in his grievance for the reason that he did not fulfil the benchmark of “Very Good” for financial upgradation. The Tribunal was of the view that CSIR is an autonomous body and that the circulars issued by the Union of India would not ipso facto apply.” 

                                      As things stood, the Bench sought to make it clear that, “The grievance of the appellant was that the failure to communicate the Annual Confidential Reports in which he had failed to meet the benchmark violated the O.Ms issued by the Department of Personnel and Training. The Tribunal rejected that contention holding that since CSIR had adopted the requirement of conveying the ACRs from a particular date in the future, the decision could not be questioned.”

                                      Simply put, the Bench then specifies that, “On the issue of promotion, it has been held that this involved a selection on the basis of performance in service and in the interview and since the Departmental Promotion Committee had graded the appellant as “good”, he was not considered for promotion. This view of the Central Administrative Tribunal was challenged before the High Court of Punjab and Haryana. By a judgment dated 13 July 2006, the writ petition filed by the Appellant was dismissed.”

                                             As it turned out, the Apex Court Bench then spells out that, “The first grievance of the appellant was that he was entitled to financial upgradation under the MACP scheme adopted by CSIR. It is not in dispute that the benchmark prescribed was “Very Good” for financial upgradation to the grade pay of Rs. 7600/- and above. CSIR, by its letter dated 30 December 2013, notified the eligibility of the appellant for the grant of financial upgradation with effect from 10 May 2011.”

                               Going ahead, it is then pointed out that, “Similarly, by its circular dated 6 February 2014, CSIR issued an All India Final Seniority List of Common Cadre Officers as on 1 January 2014. The name of the Appellant stood at Serial No. 2 in the category of Deputy Secretary/Controller of Administration. On 9 May 2014, CSIR declared the result of the exercise conducted by the Screening Committee which met on 21 April 2014. The name of the appellant did not appear in the list of officers for financial upgradation from 10 May 2011.”

                               More to the point, it is then brought out that, “The ACRs of the appellant were below the benchmark required for certain years namely 2003-2004, 2008-2009 and 2009-2010. The gradings to the appellant on 9 July 2014 to which he submitted a representation and appeared for the interview for regular promotion for 2013-2014. The grievance is that the representation was not considered.”

                               What is more, it is then also brought out in this judgment that, “When the panel for the post of Senior Deputy Secretary/Senior Controller of Administration for 2013-2014 was notified, officers junior to the appellant were empanelled for promotion. The appellant was neither granted a financial upgradation nor was he promoted as a part of the exercise of regular promotion to the higher post. The High Court affirmed the view of the Tribunal and rejected the writ petition filed by the applicant.” 

                                      Be it noted, the Bench then while citing the relevant earlier decided cases observes that, “In Dev Dutt vs. Union of India & Ors, (2008) 8 SCC 725 a two Judge Bench of this Court held that fairness in public administration and transparency require that all entries in the Annual Confidential Reports of a public servant must be communicated within a reasonable period in order to enable the employee to make a representation for upgradation. The view of the Court was that non-communication of entries in the ACRs has civil consequences since it may affect the chances of the employee for promotion and other benefits. A failure to communicate would be arbitrary. This Court held that these directions would apply to employees of statutory authorities, public sector corporations and other instrumentalities of the State, in addition to government servants.”

                       Moving ahead, it is then pointed out by the Bench that, “A three Judge Bench of this Court has in Sukhdev Singh vs. Union of India & Ors. (2013) 9 SCC 566 affirmed the correctness of the view taken in Dev Dutt (supra) noting that an earlier  three Judge Bench in Abhijit Ghosh Dastidar vs. Union of India & Ors. (2009) 16 SCC 146 had adopted the same principle. The three Judge Bench in Sukhdev Singh (supra), held thus:

              “8. In our opinion, the view taken in Dev Dutt that every entry in ACR of a public servant must be communicated to him/her within a reasonable period is legally sound and helps in achieving threefold objectives. First, the communication of every entry in the ACR to a public servant helps him/her to work harder and achieve more that helps him in improving his work and give better results. Second and equally important, on being made aware of the entry in the ACR, the public servant may feel dissatisfied with the same. Communication of the entry enables him/her to make representation for upgradation of the remarks entered in the ACR.  Third, communication of every entry in the ACR brings transparency in recording the remarks relating to a public servant and the system becomes more conforming to the principles of natural justice. We, accordingly, hold that every entry in ACR – poor, fair, average, good or very good – must be communicated to him/her within a reasonable period”.”

                                  To put things in perspective, the Apex Court Bench then points out that, “In view of the above statement of law, both the Tribunal and the High Court were in error in coming to the conclusion that CSIR being an autonomous entity and having adopted the O.Ms of the Department of Personnel and Training with effect from a specified date, the appellant could not make a grievance of the non-communication of the ACRs for the relevant period. The failure to communicate the ACRs deprived the appellant of the opportunity to submit his representation in the matter of financial upgradation. Subsequently, the appellant was furnished with an opportunity to submit his representation before his case was taken up for regular promotion, but his representation was not considered.”

                             More importantly, the Bench then states that, “The appellant did not have the benefit of submitting his representation when the Screening Committee took up the case for financial upgradation. CSIR by reason of its autonomy may have certain administrative privileges. No authority can, however, claim a privilege not to comply with a judgment of this Court. Once the law was enunciated in Dev Dutt’s case (supra), all instrumentalities of the State were bound to follow this Court. CSIR was no exception.”

                            To say the least, the Bench then further states that, “The appellant has since retired from service on 30 September 2014. The grant of MACP benefit is not a matter of right and it is after the Screening Committee finds that the officer meets the benchmark that an upgradation can be granted. Hence, we are of the view that the appellant should be granted an opportunity, within a period of four weeks from today to submit his representation in respect of the ACRs for the concerned years where he did not fulfil the benchmark for financial upgradation.”

                      Continuing in same vein, the Bench then adds that, “Upon the submission of his representation, the respondents shall consider it and communicate the outcome to the appellant within a period of two months thereafter. Based on that decision, the case of the appellant for financial upgradation shall be considered afresh. In the event his ACRs for the relevant period are upgraded, the case for financial upgradation shall be determined within a period of three months thereafter.”

                                Finally and most importantly, the Bench then concludes by observing that, “We also direct that in the event that the ACRs for the relevant period are upgraded, the case of the appellant for promotion to the post of Senior Deputy Secretary/Controller of Administration shall be considered afresh by the Departmental Promotion Committee expeditiously. This exercise shall be carried out with reference to the date on which his junior in service came to be promoted. In the event that the case of the appellant is considered favourably, he would be entitled to all consequential benefits which flow from the financial upgradation and upon the grant of regular promotion to the post of Senior Deputy Secretary. The appeal is, accordingly, allowed and the judgment of the High Court shall stand set aside. Pending application(s), if any, shall stand disposed of. No order as to costs.”

                                All said and done, there is no valid reason why any person or authority dare to question what the Supreme Court has so rightly held in this landmark and laudable case! It is about time and all authorities must comply with it unconditionally and uniformly! No authority should ever cling to the false illusion that it can afford to claim privilege not to comply with the Supreme Court judgment.

                             Bluntly put: If they still refuse to even now comply, no one but they will themselves be responsible for facing the dire consequences which would follow from such refusal and then no one can save them! Do they want such unpalatable situation to arise and suffer the dire consequences? Certainly not! So, it is better for the authorities to wake up at the earliest right now and comply unconditionally with what the Supreme Court which is the top court of India has said so explicitly!   

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.