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Gauhati High Court · body

2000 DIGILAW 12 (GAU)

Donatus Engzanang v. State of Mizoram

2000-01-05

P.C.PHUKAN

body2000
By this application under Article 226 of the Constitution the petitioner has challenged the recommendation of the Mizoram Public Service Commission (in short MPSC) recommending the respondent No.9 Pu C. Lalmalsawma to the post of Vice Principal, Sericulture Training Institute, Zemabawk, Aizawl and also the order dated 5.11.97 passed by the State Govt promoting the respondent No.9 to the said post on such recommendation. 2. I have heard Mr. AR Malhotra, learned counsel for the petitioner, Mr. N. Sailo, learned Govt Advocate for the respondent Nos 1, 2, 3, 4 and 9 and Mr. Lalsawta, learned counsel for the respondent Nos 5, 6, 7 and 8. I have also considered the records of the case. 3. The admitted facts may be briefly stated as follows. Both the petitioner and the respondent No. 9 were appointed as Extension Officer under the Directorate of Industries, Govt of Mizoram in the year 1976. Petitioner was promoted to the post of Superintendent of Sericulture in the month of August, 1982 and the respondent No. 9 in the month of February, 1984. Both of them a were promoted to the post of District Sericulture Officer by the same order dated 27.6.88 and both of them were confirmed in the post of District Sericulture Officer by the same order dated 5.1.93. The Assistant Director of Sericulture and the District Sericulture Officer are group 'A' officers in the same rank. The State Govt by notification dated 7.12.93 fixed the final inter-se seniority of Group A Officers, according to which, the petitioner is senior to the respondent No. 9, the former being placed at serial No. 3 and the latter at serial No. 4. 4. In the month of February, 1997 the post of Vice Principal of the Sericulture Training Institute at Zemabawk, Aizawl fell vacant. The petitioner was transferred and attached to the post of Vice Principal, Sericulture Training Institute, Zemabawk. This order, however, was cancelled before he could join in his new assignment. Columns 12 and 14 of the Annexure I to the Mizoram Sericulture Group A Post Recruitment Rules, 1994 provides for filling up the post of Vice Principal by promotion from Assistant Director Sericulture/District Sericulture Officer as per MP SC Limitation of Functions Regulations, 1994. This order, however, was cancelled before he could join in his new assignment. Columns 12 and 14 of the Annexure I to the Mizoram Sericulture Group A Post Recruitment Rules, 1994 provides for filling up the post of Vice Principal by promotion from Assistant Director Sericulture/District Sericulture Officer as per MP SC Limitation of Functions Regulations, 1994. By a notification dated 5.11.97 (Annexure VII) the respondent No. 9 Pu C. Lalmalsawma, who was then serving as Assistant Director, Sericulture, was promoted to the post of Vice Principal. The full text of this notification is quoted below : “On the recommendation of Mizoram Public Service Commission, the Governor of Mizoram is pleased to promote Pu C. Lalmalsawma, Assistant Director, to the post of Vice Principal, Sericulture Training Institute, Zemabawk, created vide Govt of Mizoram letter No. A.l 1013/1/89-SERI dated 02.03.93 in the scale of pay of Rs.3,000-100-3,500-125-4,500 PM plus other allowances as admissible under the Rules in force from time to time with probation period of 2 years starting from the date of taking over charge of the post. He will, however, continue to hold the charge of Assistant Director/Project Officer, Central Silk Board in addition to his new assignment as Vice Principal until further orders.” 5. Being aggrieved, the petitioner has come up before this Court in the instant writ petition. In para 11 thereof the petitioner alleges that the MP SC recommended in a most arbitrary and fanciful manner the name of respondent No. 9 for promotion to the post of Vice Principal without considering the case of the petitioner in its proper perspective, and without considering his seniority over the respondent No. 9, his service records and his extra qualification. In para 2 the petitioner states that besides Post Graduate Diploma in Mulberry Sericulture from Central Silk Board at Central Sericulture Research Station, Berhampore, he obtained Diploma in First Class in Tropical Sericulture in Specialisation Course of Silk Worm Rearing Technology from the International Centre for Training and Research in Tropical Sericulture Central Silk Board, Govt of India, Mysore. In para 13 the petitioner alleges that the MPSC made manipulation in assessing his suitability in violation of the guidelines issued by the Govt of Mizoram in memo No.A.32012/1/31 -APT (B) dated 17.7.96 with a view to deprive him and to boost up promotional scope of his junior respondent No. 9. In para 13 the petitioner alleges that the MPSC made manipulation in assessing his suitability in violation of the guidelines issued by the Govt of Mizoram in memo No.A.32012/1/31 -APT (B) dated 17.7.96 with a view to deprive him and to boost up promotional scope of his junior respondent No. 9. In the same para, the petitioner contends that the entire selection process held by MP SC was thus vitiated by a mala fide, arbitrariness and non-application of mind and as such the MP SC's recommendation to promote the respondent No. 9 to the post of Vice Principal is liable to be set aside, and the impugned order dated 5.11.97 passed by the State Govt promoting the respondent No. 9 to the post of Vice Principal on such recommendation is also liable to be set aside. 6. In his affidavit-in-opposition, the respondent No. 9 states that the post of Vice Principal, Sericulture Training Institute, being a selection post, seniority alone is not the criteria for promotion and the relevant rules do not place an extra qualified candidate in an advantageous position. 7. In the affidavit-in-opposition filed on behalf of the State respondents, it is stated that the State Govt forwarded a list of eligible candidates including the c petitioner to the MP SC for recommendation for promotion to the post of Vice Principal, and the MP SC after scrutinizing the list recommended the respondent No. 9 for promotion to said post vide its letter dated 23.10.97 (Annexure Cl to the affidavit-in-opposition), and all that the respondent Govt did was implementation of the recommendation of the MP SC. 8. By filing an affidavit-in-opposition, the respondent MP SC has denied all the allegations made by the petitioner against the selection process. It is stated that MP SC assumed the duty of the Departmental Promotion Committee (DPC) in absence of separately constituted DPC in the instant case as provided in Recruitment Rules. In para 7 it is stated that seniority over other candidates and having extra qualification, beyond what are prescribed by the relevant rules are not relevant for consideration of their selection. The MP SC has denied that the recommendation was made in violation of the guidelines issued by the State Govt dated 17.7.96 (Annexure I to the affidavit-in-opposition). In para 7 it is stated that seniority over other candidates and having extra qualification, beyond what are prescribed by the relevant rules are not relevant for consideration of their selection. The MP SC has denied that the recommendation was made in violation of the guidelines issued by the State Govt dated 17.7.96 (Annexure I to the affidavit-in-opposition). The MP SC claims to have strictly followed the guidelines and that the ACR's of the officers were rationalized and not graded merely by the overall grading recorded by the superior officers and that proper assessment was made on the basis of all the entries in the Confidential Reports as per para 3.4 (e) and other instructions contained therein. 9. In para 3 (b) of the affidavit-in-reply, the petitioner submits that the ACR's of the petitioner and the private respondent ought to be produced before this Court. In para 12 of the affidavit-in-opposition, the private respondent No. 9 prays for requisitioning all the related DPC proceedings from the MP SC. The State Govt has produced the ACR's for 5 years starting from 1992-93 to 96-97 in respect of the petitioner and the respondent No. 9. The respondent MP SC has produced the Minutes of the Selection Committee Meeting held on 24.9.97 to consider the promotion for the post of Vice Principal along with details of assessment of ACR's of District Sericulture Officers/Assistant Directors in the zone of consideration for promotion to the post of Vice Principal and a special h report from the Secretary to the Govt of Mizoram, Sericulture Department. Para 2 of the Minutes of the Meeting reads as follows: “Apart from the remarks he gave to Pu D. Engzanang in the ACR ending 1996-97 Secretary Sericulture Department has submitted a special report in the performance of the officer saying that the officer has behaved during the period under report in an irresponsible manner and that in spite of warnings issued to him in writing he has not made satisfactory improvement in this regard, and that he therefore, considers him not suitable for promotion to a higher grade at this stage. This Committee did not find any reason to differ from his report and views.” 10. This Committee did not find any reason to differ from his report and views.” 10. On being asked, the learned counsel for the MP SC as well as the learned Govt Advocate appearing for the State respondents and for respondent No. 9 could not say that the relevant Recruitment Rules or any rule or any executive " order provide for submission of such a special report to the MP SC and that the MPSC could have acted upon such special report apart from the relevant ACR's while considering candidates for promotion to the post of Vice Principal. Be that as it may, the MPSC has made its own assessment of the ACR's of Assistant Directors, Sericulture/District Sericulture Officers in the zone of consideration for promotion to the post of Vice Principal. The assessment was made as under: SI No. Name of Officers 92-93 93-94 94-95 95-96 96-97 Over all 1.D.Enzanang G VG VG VG G Good 2.C. Lalmalsawma VG VG VG VG CG V.Good 3.H. Lalthanmawia G G G G VG Good It is within the powers of the MP SC assuming the duty of the DPC to make its own assessment as above on the basis of the entries in the CR's provided for in para 3.4 (e) which reads as under : “3.4 (e) The DPC should not be guided merely by the overall grading, if any, that may be recorded m the CR's, but should make its own assessment on the basis of the entries in the CR's, because it has been noticed that sometimes the overall grading in a CR may be inconsistent with the grading under various parameters or attributes.” 10A. Para 3.5 (i) of the said Guidelines reads as under: “3.5 (i): Having regard to the levels of the posts to which promotions are to be made, the nature and importance of duties attached to the posts, a bench mark grade would be determined for each category of posts for which promotions are to be made by selection method. For all Group 'C' and Group 'B' posts, the bench mark would be 'Good'. All officers whose overall grading is equal to or better than the bench mark should be included in the panel for promotion to the extent of the number of vacancies. For all Group 'C' and Group 'B' posts, the bench mark would be 'Good'. All officers whose overall grading is equal to or better than the bench mark should be included in the panel for promotion to the extent of the number of vacancies. They will be arranged in the order of their inter-se seniority in the lower category without reference to the overall grading obtained by each of them provided that each one of them has an overall grading equal to or better than the bench mark of 'good'. 3.5(ii) In respect of Group A posts, the bench mark grade should be Very Good'. Similarly, for promotion from Group 'B' post to Group 'A' post, the bench mark grade will be 'Very Good'. However, officers who are graded as 'Outstanding' would rank an block senior to those who are graded as 'Very Good' and placed in the select panel accordingly up to the number of vacancies. Officers with same grading maintaining their inter-se seniority in the feeder post." (emphasis supplied). 11. Assuming that the above assessment by the MP SC has been duly and properly made, the petitioner having failed to get the Bench Mark Grade 'Very Good' shall be out in the race for promotion to the post of Vice Principal, a Group A post. The petitioner was given overall grade 'Good', a grade lower than the Bench Mark Grade. If the petitioner was given the Bench Mark Grade 'Very Good' as was given to the respondent No. 9, both of them would have been in the same grade and would have maintained their inter-se seniority in the feeder post, and the petitioner being senior to the respondent No. 9, his name would have been above the respondent No. 9 in the select panel. In that case the petitioner, and not the respondent No. 9, would have been recommended for promotion to the post of Vice Principal. 12. Now the pertinent question is whether the overall assessment made by the MP SC was duly and properly made. In the first place, for the year 1996-97 two ACR's have been recorded in respect of the petitioner for the same year, 1996-97, first part covering the longer period of seven months from 1st April, 1996 to 31st October, 1996 and the-second part covering the shorter period of five months from 1st November, 1996 to 31st March 1997. In the first place, for the year 1996-97 two ACR's have been recorded in respect of the petitioner for the same year, 1996-97, first part covering the longer period of seven months from 1st April, 1996 to 31st October, 1996 and the-second part covering the shorter period of five months from 1st November, 1996 to 31st March 1997. In the first part the Reporting Officer gave the grading 'Very Good', the Reviewing Authority agreed to that and the Accepting Authority, i.e. Secretary, Sericulture Department, Govt of Mizoram also accepted the grading 'Very Good' with following remarks : “I agree with the assessment made by Reporting Officer and remarks of the Reviewing Officer and the grading 'Very Good' given by them. The Officer has worked tirelessly and with utmost dedication as Project Officer for the mulberry cultivation sanctioned by the Central Silk Board Govt of India. He took pains in preparing viable schemes and ensured that they are implemented through the field staff of the Directorate of Sericulture. The officer has always created very good impression for himself by speaking frankly without any fear or favour. Besides the special project, he also implemented various schemes for development of eri and muga. He has very sound knowledge on the technical side of Sericulture and has neck for explaining the points to the farmers in detail. He is fit for promotion to the post of Deputy Director of Sericulture.” In the second part, the Reporting Officer gave him the grade 'Very Good'. The Reviewing Authority gave him the grade 'Good'. The Accepting Authority agreed with the Reviewing Officer and added that: “His performance has been found deteriorating it was also on record that he could not hand over his charge in spite of number of verbal and written warnings. His performance has be watched closely since the last five months under my charge. This is the result of my careful and unbiased assessment of the officer.” 13. The Accepting Authority was the same, i.e., the Secretary, to the Govt of Mizoram, Sericulture Department, the incumbent was changed. With the change of the incumbent, the sea change in the remarks about the petitioner is intriguing, for, the damaging remark in the second part was made on 11.8.97 barely four days after the remark in the-first part was made on 6.8.97 highly praising the petitioner. With the change of the incumbent, the sea change in the remarks about the petitioner is intriguing, for, the damaging remark in the second part was made on 11.8.97 barely four days after the remark in the-first part was made on 6.8.97 highly praising the petitioner. That apart, it transpires from the comparative statement of the ACR's /2 of the petitioner and the respondent No. 9 produced by the learned Govt Advocate, that in the year 1995-96 the petitioner was given the grade 'Outstanding' and the very next year 1996-97 it was down graded two steps from 'Outstanding' to 'Good'. The learned counsel for the petitioner submits that such down grading was adverse to the petitioner and should have been communicated to him, and in the absence of such communication such down grading could not have been acted upon. In support of his contention, learned counsel for the petitioner referred to the case reported in (1996) 2 SCC 363 wherein it has been held : “2. The first respondent was downgraded at a certain point of time to which the Service Tribunal gave a correction. Before the High Court, the petitioners' plea was that downgrading entries in confidential reports cannot be termed as adverse entries so as to obligate the Nigam to communicate the same to the employee and attract a representation. This argument was turned down by the High Court, as in its view, confidential reports were assets of the employee since they weigh to his advantage at the promotional and extensional stages of service. The High Court to justify its view has given an illustration that if an employee legitimately had earned an 'Outstanding' report in a particular year which, in a succeeding one and without his knowledge, is reduced to the level of 'satisfactory' without any communication to him, it would certainly be adverse and affect him at one or the other stage of his career. 3. We need to explain these observations of the High Court. The Nigam has rules, where under an adverse entry is required to be communicated to the employee concerned but not down grading of an entry. It has been urged on behalf of the Nigam that when the nature of the entry does not reflect any adverseness that is not required to be communicated. The Nigam has rules, where under an adverse entry is required to be communicated to the employee concerned but not down grading of an entry. It has been urged on behalf of the Nigam that when the nature of the entry does not reflect any adverseness that is not required to be communicated. As we view it the extreme illustration given by the High Court may reflect an adverse element compulsorily communicable, but if the graded entry is of going a step down, like falling from 'Very Good' to 'Good' that may not ordinarily be an adverse entry since both are a positive grading. All that is required by the authority recording confidential in the situation is to record reason for such downgrading on the personal file of the officer concerned, and inform him of the change in the form of an advice. If the variation warranted be not permissible, then the very purpose of writing annual confidential reports would be frustrated. Having achieved an optimum level the employee on his part may slacken in his work relaxing secure by his one time achievement. This would be an undersirable situation. All the same the sting of advisement must, in all events, not be reflected in such variations, as otherwise the shall be communicated as such. It may be emphasized that even a positive confidential entry in a given case can perilously be adverse and to say that an adverse entry should always be qualitatively damaging may not be true. In the instant case we have seen the service record of the first respondent. No reason for the change is mentioned. The downgrading is reflected by comparison. This cannot sustain. Having explained in this manner the case of the first respondent and the system that should prevail in the Jal Nigam, we do not find any difficulty in accepting the ultimate result arrived at by the High Court”. 14. There is nothing before me to show that the concerned authority recorded reasons for downgrading in respect of the petitioner in his personal file, and admittedly, it was not communicated to the petitioner. Learned Govt Advocate, appearing for the State respondents, however, submits that in that case downgrading was from 'Outstanding' to 'Satisfactory' and in the instant case downgrading was from 'Outstanding' to 'Good', and hence no communication to the petitioner was necessary. Learned Govt Advocate, appearing for the State respondents, however, submits that in that case downgrading was from 'Outstanding' to 'Satisfactory' and in the instant case downgrading was from 'Outstanding' to 'Good', and hence no communication to the petitioner was necessary. Having given my anxious consideration to such submission, I am not inclined to accept the same. In the instant case, the graded entry had gone two steps down falling from 'Outstanding' to 'Good', and I feel that the authority should have recorded reasons for such downgrading in the personal file of the petitioner and should have informed him about the change in the form of an advice. In view of what has been stated above, the ACR of the petitioner for the year 1996-97 could not have been acted upon. While making its own assessment, the MP SC took into consideration the ACR of the petitioner for the year 1996-97 also along with other ACR's for the years 92-93,93-94,94-95 and 95-96, and hence such assessment must be said to have been vitiated. Hence the MP SC's recommendation to promote the respondent No. 9 to the post of Vice Principal based on such assessment cannot be allowed to stand and also the order dated 5.11.97 passed by the State Govt promoting the respondent No. 9 to the post of Vice Principal on the basis of such recommendation cannot be allowed to stand. 15. In the result, the recommendation of the MP SC to promote the respondent No. 9 to the post of Vice Principal, Sericulture Training Institute, communicated to the State Govt vide letter dated 23.10.97 and the order dated 5.11.97 passed by the State Govt promoting him to the said post on the basis of such recommendation are set aside and quashed. 16. It is for the authority concerned to initiate afresh the process for filling up the vacancy of the post of Vice Principal, Sericulture Training Institute, Zemabawk strictly in accordance with law. 17. This writ petition is allowed as indicated above. No costs.