Bhupen Barkataki : Mrinal Kumar Das : Haresh Chandra Baruah v. State of Assam
1993-09-29
R.K.MANISANA SINGH
body1993
DigiLaw.ai
Civil Rule Nos. 3577, 3611 and 3650 of 1991 have been heard together and disposed of by a common judgment. In these writ petitions, the petitioners have challenged, inter alia, the order dated 14.6.91 issued by the Under Secretary to the Government of Assam, Powers, Mines and Minerals Department, appointing Sri BN Talukdar as Deputy Director, and Sarvasri R. Kakati, AK Kalita, DN Dutta and MN Talukdar as Senior Geologists. 2. Facts, - In the year 1987 there were two vacancies (one regular vacancy and another expected resultant vacancy) in respect of Deputy Director/Senior Geologist in the Directorate of Geology and Mining, Assam. The Selection Committee held its meeting on 18.7.87 for selection of the candidates for promotion to the posts. The Selection Committee recommended Sri MK Das for the reserved post for SC and four other persons, namely Sri HC Baruah, Sri BN Talukdar, Sri Ranjit Kakaty and Sri AK Kalita, for one post of the general candidates (see Annexure B (7) to CR No. 3650 of 1991). By a letter dated 24.11.87, the .Director of Geology and Mining requested the Government to take appropriate action for filling up vacancies in the Directorate immediately by stating that a number of posts sanctioned in the year 1986-87 were yet to be filled up and Selection Committee had recommeded names of the officers to fill up various posts in the meeting held in July 1987 (see Annexure C to CR 3650 of 1991). It is not known what had happened about the recommendation by the Selection Committee in its meeting held on 18.7.87. However, in the month of November, 1990, the Selection Committee held its meeting but selection for promotion could not be completed because adverse entries made in the ACRs of some of the officers who were within the zone of consideration were not communicated. Adverse remarks were communicated and explanations were called for. Thereafter, the Selection Committee held its meeting on 25.2.91 and 27.2.91 for selection for promotion to various posts including Deputy Director/Senior Geologists. At the time of the selection process there were five (5) vacancies, one in respect of Deputy Director and four (4) in respect of Senior Geologists. Twelve Geologists were in the field of choice. They were : 1. Sri HC Baruab, 2. Sri BN Talukdar, 3. Sri R. Kakaty, 4. Sri A. Kalita, 5. Sri B Barkataky, 6. Sri DN Dutta, 7.
Twelve Geologists were in the field of choice. They were : 1. Sri HC Baruab, 2. Sri BN Talukdar, 3. Sri R. Kakaty, 4. Sri A. Kalita, 5. Sri B Barkataky, 6. Sri DN Dutta, 7. Sri MK Das, 8. Sri MN Talukdar, 9. Sri SK Barman, 10. Sri JD Gcswami, 11. Sri J. Kalita and 12. Sri UK Barua. But the committee did not find Sri HC Baruah, Sri B. Barkataky and Sri MK Das suitable for promotion in view of adverse remarks in their respective ACRs. The committee considered the seniority, experience and other aspects and made selection of the following Geologists for promotion to the posts of Deputy Director and or Senior Geologists in order of merit. The selected and recommended officers in order of merit are : . Sri BN Talukdar, 2. Sri R. Kakaty, 3. Sri A. Kalita, 4. Sri DN Dutta, 5. Sri DN Talukdar, 5. Sri SK Barman, 7. Sri JD Goswami, 8. Sri J. Kalita and 9. Sri UK Baruah. The recommendation of the committee was approved and five officers were promoted, as already stated, under the impugned order. Being aggrieved by the order of appointment, Sri B Barkataky filed Civil Rule No.3577 of 1991, Sri MK Das Civil Rule No.3611 of 1991 and Sri HC Barua Civil Rule No. 3650 of 1991, challenging the order of appointment. 3. Mr. AK Phukan, learned counsel for the petitioners, has submitted that the procedure followed by the Selection Committee was illegal for the Selection Committee should have prepared year wise panels as the committee had not met for a number of years. In the year 1987, there was vacancy. No regular Selection Committee could meet from 1987 till 1991; that is to say, Selection Committee had not met for a number of years beyond its control although vacancies arose during those years. In such a case, I am of the view that it would be fair and just, if year wise panels are prepared for the following reasons. When vacancy arose in a particular year, officers in the field of choice have the right to be considered for promotion in that year and the selection must be held in accordance with the rules as it stood in the year in which vacancy arose.
When vacancy arose in a particular year, officers in the field of choice have the right to be considered for promotion in that year and the selection must be held in accordance with the rules as it stood in the year in which vacancy arose. However, it does not mean that the select list pertaining to a particular year must be completed- or finalised in that year. For preparation of year wise panels where Selection Committee could not meet for a number of years, the following procedure should follow : (i) determine actual number of vacancies that arose in each of the previous year or 3 ears immediately preceding and actual number of vacancies proposed to be filled up in the current year separately; (ii) consider in respect of each of the years those officers only who would be within the field of choice with reference to the vacancies of each year starting with the earliest year onwards; (iii) prepare a select list for each of the years starting with the earliest years onwards; and (iv) prepare a consolidated select list by placing the select list of earlier year above the one for the next and so on. It may be illustrated thus. The Selection Committee met in 1991. The number of vacancies in the year 1987 and 1989 were 2 and 1 respectively. Panel for 1987 No. of vacancies - 2 Field of choice - say 6 Selection Committee found officers at serial Nos. 1 and 3 suitable Panel for 1987 would be serial Nos 1 and 3, and those who were not found suitable would be considered in the subsequent year of vacancy. 4. In the present case, the Selection Committee had not prepared year wise panels by considering the year wise vacancy. Selection Committee plays a significant role in the career of service personnel. The method adopted by the Selection Committee, in the present case, was not just and fair for the reasons stated above and, therefore, the selection process in respect of selection of Deputy Director/Senior Geologists are quashable. 5. Next contention of Mr.AK Paukan, learned counsel for the petitioners, is that the composition of the Selection Committee was bad and, therefore, the Selection Committee cannot be considered as having been taken fairly and justly. The learned counsel has argued thus. Sri BN Talukdar is the brother-in-law of Director being Director's younger sister's husband.
5. Next contention of Mr.AK Paukan, learned counsel for the petitioners, is that the composition of the Selection Committee was bad and, therefore, the Selection Committee cannot be considered as having been taken fairly and justly. The learned counsel has argued thus. Sri BN Talukdar is the brother-in-law of Director being Director's younger sister's husband. The Director favourably disposed towards his brother-in-law Sri BN Talukdar who was one of the selected candidates and as such the proceeding of the Selection Committee was vitiated for decision of the committee cannot be considered as having been taken fairly and justly. The selection in question was made solely on the basis of the records on ACRs of the officers. Their suitability was not tested by any examination writing or oral. The real question, therefore is whether the Director was not biased as ii is difficult to prove state of minds of a person. Therefore, what we have to see is whether there was reasonable ground for believing that he was likely to have been biased. In AIR 1993 SC 2400, Ratanlal Sarma vs. Managing Committee, it has been held that real likelihood of bias is sufficient. It is not necessary that bias has, in fact, taken place. It is settled that one cannot be a judge of his own cause. Proceedings show that the Director all along participated in deliberation of-the committee and the Director was also a party to preparation of list of the selected candidates in order of preference. At every stage of his participation in deliberation of Selection Committee there is a conflict between his interest towards his brother-in-law and duty. 6. In the above view of the matter, there was reasonable ground for believing that the Director was likely to have been biased and, therefore, the selection process in so far as it relates to selection of Deputy Director/Senior Geologist, is liable to be quashed. 7. The last contention of Mr. Phukan is that there was delay in the communication of adverse remarks and, therefore, the delay in the communication of adverse remarks was fatal and it did not serve and purpose. 8. The whole object of making and communication of adverse remakes is to give to the officer concerned an opportunity to improve his performances, conduct or character as the case may be.
8. The whole object of making and communication of adverse remakes is to give to the officer concerned an opportunity to improve his performances, conduct or character as the case may be. The adverse remarks should not be understood in terms of punishment, but really it should be take as an advice to the officer concerned, so that he can act in accordance with the advice and improve his service career (see AIR 1987 SC 1201 ). The delay in communication adverse remarks may be fatal depending upon the circumstances of the case. Adverse remarks recorded in the ACRs of Sri B. Barkataki, Sri MK Das and Sri HC Baruah were communicated to them for their explanation under different letters dated 13.11.90. Sri B. Barkataki was to explain adverse remarks recorded in his ACRs ending 1987 and 1989; Sri MK Das, ending 1987 and l988; and Sri HC Baruah, ending 1987,1988 and 1989. On a perusal of the ACRs produced before the Court, it appears that assessments in the ACRs of the above three officers were completed between 9.5.89 and 21.7.90. Therefore, in the present case, it cannot be said that there was such a delay in the communication of the adverse remarks which would be purposeless and fatal. 9. For the foregoing reasons, the petitions are allowed. The proceeding of the Selection Committee in so far as it relates to promotion to the posts of Deputy Director/Senior Geologists, are set aside. The Selection Committee shall make a fresh selection in the light of the observation above. The selection process shall be completed within a period of three (3) months from today and the promotion of the respondents to the post of Deputy Director/Senior Geologists shall be subject to the result of the fresh selection. It is made clear that if selection process is not completed within three months aforesaid the officers shall be reverted to their respective posts. Petitions are allowed to the extent indicated above.