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2004 DIGILAW 289 (GAU)

Purnendu Dutta v. State of Tripura

2004-04-23

TINLIANTHANG VAIPHEI

body2004
JUDGMENT T. Vaiphei, J. 1. This writ petition is filed by the petitioner for directing the respondents to consider the case of the petitioner for promotion to the post of Inspector of Police from a date earlier than the date from which his juniors were promoted to that post and to maintain his seniority above the proforma-respondents. 2. It is the case of the petitioner that he was appointed to the post of Sub-Inspector of Police (Un-armed Branch) on 26.07.1979 and was confirmed to that post on 12.06.1980. He passed the departmental examination in the year 1987-88 and that he thus became eligible for promotion to the post of Inspector of Police (Un-armed Branch) since July 1997. In the provisional gradation list of SI of Police (Un-armed Branch), notified by the Director General of Police, Government of Tripura in Memorandum dated 22.01.2000, his name appears at Sl. No. 19 whereas the names of the pro-respondents appears at Sl. Nos. 20 to 34, thereby confirming that he was senior to the pro-respondents. The petitioner states that by the Memorandum dated 3.10.20.00, 33 S.I. of Police including the pro-respondents were promoted to the post of Inspector of Police. Since the petitioner was not promoted to that post while his juniors were promoted by the aforesaid Memorandum, he made a series of representations to the respondents but to no effect. It is the case of the petitioner that since he joined the post of S.I. of Police he has been rendering his service quite diligently, efficiently and to the satisfaction of his superiors and that he has been holding different posts like Officer-in-charge of different police stations, DIO, Crime Reader, CTSI, etc. The petitioner goes on to say that since 1999 he has been holding the post of Reserve Officer in the Office of the Superintendent of Police, Dhalai District and that during his 20 years of service, no criminal case or departmental proceedings were initiated against him. According to the petitioner, since nothing adverse in his Annual Confidential Reports (ACR) were recorded against him, it is unimaginable that there could be adverse entry in his service record. According to the petitioner, since nothing adverse in his Annual Confidential Reports (ACR) were recorded against him, it is unimaginable that there could be adverse entry in his service record. The petitioner contends that his service book was never placed before the Departmental Promotion Committee (DPC) since the same was lying in the office of the Superintendent of Police, Dhalai District which Was never sent to the Police Headquarters and that the non-consideration of his service record, which is a vital material, vitiates the selection proceeding of the DPC and as such both the proceedings of the DPC as well as the impugned Memorandum are illegal, which are liable to be set aside. 3. The State-respondents resisted the writ petition and filed their counter affidavit wherein it was, inter alia, pointed out that the petitioner was given overall grading of "Average" by the DPC, thereby making him unfit for promotion. The State-respondents further state that according to the procedure laid down in Memorandum dated 23.3.1992 (Annexure-R-2), the bench-mark for promotion required is "Good" and that for promotion to the post of Inspector of Police with 8 years qualifying service in the post of S.I. of Police is required and so, the ACRs for the last preceding 8 years are required to be examined by the DPC. The State-respondents further states that the S.I. of Police, who obtained overall grading equal to or better than bench-mark "Good" are found fit for promotion. In the Un-armed Branch there were 19 vacancies for Un-reserved candidates and, 42 eligible candidates, who were within the zone of consideration including the petitioner were considered by the DPC on 03.08.2000. It is also pointed out by the State-respondents that the cases of all the candidates who came within the zone of consideration including the case of the petitioner were considered by the DPC in order of seniority with reference to the ACRs for the last preceding 8 years and other service records. Since the DPC graded the case of the petitioner "Average", he was not recommended for promotion. It was under such circumstances that the petitioner was to given the promotion. According to the State-respondents, since the method of promotion is by selection, merit and suitability are paramount consideration in which seniority merely plays a secondary role. The State-respondents deny that there was malice or discrimination in not giving promotion to the petitioner. It was under such circumstances that the petitioner was to given the promotion. According to the State-respondents, since the method of promotion is by selection, merit and suitability are paramount consideration in which seniority merely plays a secondary role. The State-respondents deny that there was malice or discrimination in not giving promotion to the petitioner. The State-respondents admitted that the service record was not placed before the DPC but, according to the State-respondents, the same was not required since clearance certificate was obtained from the concerned Superintendent of Police which obviated the necessity for placing the service record before the DPC. It is, therefore, submitted by the State-respondents that there is no infirmity in the proceedings of the DPC which can warrant the interference of this Court. 4. From the pleadings of both the parties it is an admitted position that the service record of the petitioner was not placed before the DPC at the time of considering the case of the petitioner as evident from paragraph Nos. 18, 19 and 21 of the counter affidavit in which it is stated by the State-respondents that since clearance certificate has been obtained from the Superintendent of Police, it was not required to consult further the service book of the Officer concerned at the time of conducting DPC. It is submitted by Ms. P. Dhar, the learned counsel for the petitioner that non-placing of the service record before the DPC is contrary to Clause 2.2.1(6) which says that the DPC should assess the suitability of the Officers for promotion on the basis of their service records and with particular reference to the CRs for 5 preceding years and is also, against the decision of this Court in Bakul Chandra Mazumdar and Ors. v. State Bank of India and Ors., reported in (2002) 3 GLR 584and also the decision of the Apex Court in State Bank of India etc. v. Kashinath Kher and Ors., reported in. According to the learned counsel for the petitioner the DPC is required to verify the ACRs of the candidates from the service records and adopting the confidential report by the DPC in this case in toto without cross verification is illegal and for this reasons alone the selection process has been rendered vitiated. On the other hand, Mr. According to the learned counsel for the petitioner the DPC is required to verify the ACRs of the candidates from the service records and adopting the confidential report by the DPC in this case in toto without cross verification is illegal and for this reasons alone the selection process has been rendered vitiated. On the other hand, Mr. T.K. Roy, the learned advocate General for the State-respondents submits that the jurisdiction of this Court to review the proceeding of the DPC being only confined to illegality, procedural impropriety or violation of natural justice, in the absence of proof thereof by the petitioner, no interference is called for. The learned Advocate General further submits that since the petitioner was given the overall grading of "Average" by the DPC, he was rightly not recommended by the DPC. In this connection he takes me to Clause 2.1.4., of the procedure to be observed by the DPC in the Memorandum, dated 23.3.1992 (Annexure-R-2) in which it is provided, among others, that "Average" performance should be regarded as routine and undistinguished and that it is only performance that is above average and performance that is really noteworthy, which should entitle an officer to recognition and suitable rewards in the matter of promotion. According to the learned Advocate General, there is no requirement to consult the service record of the petitioner as evident from Clause 2.2.1(e) of the said memorandum, which states that the DPC should not be guided by the overall grading, if any, that may be recorded in the CRs but should make its own assessment on the basis of the entries in the CRs because it has been noticed that sometimes the overall grading in a CR may be inconsistent with the grading under various parameters or attributes. Once clearance certificate has been obtained from the competent authority, submits the learned Advocate General, there is no requirement to place his service record before the DPC. The learned Advocate General, therefore, submits that there is no procedural impropriety committed by DPC is not considering the service record of the petitioner. 5. Once clearance certificate has been obtained from the competent authority, submits the learned Advocate General, there is no requirement to place his service record before the DPC. The learned Advocate General, therefore, submits that there is no procedural impropriety committed by DPC is not considering the service record of the petitioner. 5. It is true that it is not the function of the Court to hear appeal over decisions of the selection committee and to scrutinise the relevant merits of the candidate's. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The Court has no such expertise. If the decision-making process is not vitiated, the resultant decision cannot be interfered with by the Tribunal or courts on the ground that if it were the authority which took the decision, it would not have been the same. It has also been held that even if, on a perusal of the file relating to the deletion on a comparative assessment of the merit of the applicant, the tribunal or courts come to the conclusion that the applicant is more meritorious than the other candidates, the Tribunal or Courts cannot interfere with the selection and empanelment. However, with due respect, this traditional approach seems to have undergone significant change in the recent decision of the Apex Court in Badrinath v. Govt. of Tamil Nadu (2000) 8 SCC 395 , the relevant paras whereof are reproduced as under :- "38. Normally, this Court does not enter into question of the correctness of assessment made by the Departmental Promotion Committee (or Joint Screening Committee). 39. But the case before us appears to be a very exceptional one as it has serious overtones of legal bias (to which we shall refer in detail when we come to points 4 and 5). 40. Unless there is a strong case for applying the Wednesbury doctrine or there are mala fides, courts and Tribunal cannot interfere with assessments made by the Departmental Promotion Committee in regard to merit or fitness to promotion. 40. Unless there is a strong case for applying the Wednesbury doctrine or there are mala fides, courts and Tribunal cannot interfere with assessments made by the Departmental Promotion Committee in regard to merit or fitness to promotion. But in rare cases, if the assessment made is either proved to be mala fides or is found based on inadmissible or irrelevant or insignificant or trivial material and if an attitude of ignoring or not giving weight to the positive aspects of one's career is strongly displayed, or if the inference drawn are such that no reasonable person can reach such conclusions, or if there is illegality attached to the decision, then the powers of judicial review under Article 226 of the Constitution are not foreclosed." (Emphasis mine) 6. In the light of the legal principles laid down by the Apex Court in the aforesaid case, the question to be decided in this case is whether the petitioner has made out a strong case for interference by this Court in the selection process of the DPC. It is the specific case of the petitioner that during the last 20 years of his service, he has been holding responsible posts such as Officer-in-charge of different Police Stations, DIO, Crime Reader, CT SI and Reserve Officer, etc. and has been awarded 41 major awards including good service marks and 13 minor awards. Neither a disciplinary proceeding nor a criminal case has been initiated against him in his career. I have taken pains to go through the entire counter-affidavit of the State-respondents and did not find therefrom any whisper of denial or dispute on those facts asserted by the petitioner. To my mind, those facts certainly constitute the positive aspects in the career of the petitioner. It is trite that every step in a Government servant's life must be recorded in his service book. Such record must necessarily include both the positive and negative aspects in the career of a Government servant. Needless to say, these entries must also be reflected in his confidential reports. It is strenuously urged by Ms. P. Dhar, the learned counsel for the petitioner that the overall grading of "Average" given to the petitioner on the uncontroverted facts of the instant case is unimaginable and that the meritorious service rendered by him must have been overlooked or deliberately suppressed by those who wrote his ACRs. It is strenuously urged by Ms. P. Dhar, the learned counsel for the petitioner that the overall grading of "Average" given to the petitioner on the uncontroverted facts of the instant case is unimaginable and that the meritorious service rendered by him must have been overlooked or deliberately suppressed by those who wrote his ACRs. Thus, according to the learned counsel, non-placing has of the service record of the petitioner before the DPC by the State-respondents deprived the DPC of the opportunity to make cross-verification of his ACRs and resulted in improper assessment of his merit and ability, thereby vitiating the selection process in so far as the petitioner is concerned. 7. At this stage, it may be noticed that the service record of the petitioner was admittedly to placed before the DPC at the time of considering his case for promotion. I have carefully gone through the proceeding of the DPC, which is at Annexure-R/3 to the counter-affidavit, the relevant portion whereof is at para-2. The DPC has noted that according to the procedure laid down in the said Memorandum dated 23.3.1992, the bench-mark for promotion is "Good" and that the qualifying service in the feeder post is 8 years. It is apparent from the said proceeding that the DPC recommended only those Sub-Inspector of Police who obtained the overall grading equal to or better than the bench-mark "Good" for promotion to the rank of Inspector of Police. In para 8 of the said proceeding, the DPC observed that there are 19 vacancies in the category, and 42 eligible candidates within the zone of consideration had been considered under the Unreserved category. The name of the petitioner is found at Sl. No. 6 wherein the petitioner was given the overall grading of "Average" and his case was remarked as "not fit and not recommended for promotion". 8. As noted earlier, the procedure for, promotion to be followed by the DPC is laid down in the Memorandum dated 23.3.1992. Clause 2.1.3 of the Memorandum provides that the merit of officers should be reflected in the ACRs. 8. As noted earlier, the procedure for, promotion to be followed by the DPC is laid down in the Memorandum dated 23.3.1992. Clause 2.1.3 of the Memorandum provides that the merit of officers should be reflected in the ACRs. Then Clause 2.2.1(b) prescribes that the DPC should assess the suitability of the Officers for promotion oh the basis of their service records and with particular reference to the CRs for 5 proceeding years and that in cases where the required qualifying service is more than 5 years, the DPC should see the record with particular reference to the CRs for the years equal to the required qualifying service. Clause 2.2.1(e) requires the DPC not to be guided merely by the overall grading, if any, that may be recorded in the CRs but should make its own assessment's on the basis of the entries in the CRs, because it has been noticed that sometimes the overall grading in a CR may be inconsistent with the gradings under various parameters and attributes. The point for determination now is whether there is any requirement to place the service record of a candidate, apart from CRs, before the DPC in term of the said Memorandum. If Clause 2.1.3 and Clause 2.2.1(e) are read in isolation, no doubt reference to the service of an official by the does not appear to be necessary. But then, Clause 2.2.1(b) also requires the DPC to assess the suitability of the candidate on the basis of service records and with particular reference to the CRs for the number of years equal to the qualifying service. To my mind, this provision shows that the DPC must have the benefit of going through the service records of each candidate for the purpose of making cross-verification of the entries in the ACRs if it is allowed to make independent assessment of the merit of each candidate. As observed earlier, the service record of an official comprises of both the positive and negative aspect of his life, which, in turn, should be reflected in and form the basis for entries of the ACRs. As observed earlier, the service record of an official comprises of both the positive and negative aspect of his life, which, in turn, should be reflected in and form the basis for entries of the ACRs. For example, if the achievements and awards earned by an official are overlooked, or deliberately suppressed by his superior officer/reporting officer due to some motives, and the same are not detected by the reviewing or accepting officer, and the DPC is not empowered to make cross-verification of the ACRs on the basis of the service record, can it said that the candidate concerned has been given fair treatment while considering his case for promotion ? In my considered view, such a procedure cannot be said to be fair or just or non-arbitrary. 9. Therefore, Clause 2.2.1(e) cannot be read in isolation but must be read with Clause 2.2.1(b), and so read, it becomes clear that the service records of a candidate should be made available to the DPC for cross-verification of the entries recorded in the ACRs. Promotion is an important event in the service career of a person, and denial of promotion to him on account of unfair practice or procedure adopted by the authorities concerned is not only abhorring but is also indicative of a not gaining entry into the system of administration. Under the circumstances, I agree with the submission of Ms. P. Dhar, the learned counsel for the petitioner, that it is mandatory for the State-respondents to place the service record of the petitioner before the DPC while considering his case for promotion. I am fortified in my view by the decision of the Apex Court in State Bank of India v. Kashinath Kher wherein, in the context of promotion of officers in the State Bank of India, it was held that the adoption of confidential reports submitted in toto by the Committee considering promotion without any cross-verification from the character rolls or the record and independent assessment of merits and ability is illegal. It was further held that being a competent authority to consider the claim of the candidates, the Committee for promotion has to independently assess the merit and ability of each candidate from the reports and records, etc. It was further held that being a competent authority to consider the claim of the candidates, the Committee for promotion has to independently assess the merit and ability of each candidate from the reports and records, etc. consistent with weightage prescribed in the rules and then to determine the relative merit and ability of officers and then to arrange order of merit of the officers for promotion. Again, in Bakul Chandra Mazumdar and Ors. v. State Bank of India (2002) 3 GLR 504, a Single Bench of this Court (D. Biswas, J.) has held that rejection of promotion totally based on the confidential reports without cross verification of the character rolls or other records reflective of the merits and ability of the officer concerned is undoubtedly illegal. Consequently, the DPC by rejecting the promotion of the petitioner, entirely based on his ACRs without cross verification of his service record, has acted contrary to the procedure laid down in the Memorandum dated 23.03.1992 and the resultant selection or rejection is thus normally liable to be quashed. 10. Having held that the proceeding of the DPC in question is vitiated, the next point equally worthy of serious consideration is whether the proceeding is ipso facto liable to be interfered with. To my mind, the answer to this question must necessarily depends upon whether any prejudice has been caused to the petitioner by the DPC by entirely relying upon ACRs without cross verification of his service record. However, I am not unmindful of the note of caution sounded by the Apex Court in Badrinath's case (supra) that the assessment made by the DPC in the matter of promotion should not be lightly interfered with the Courts and Tribunals, which may be quoted with advantage as under :- "41. While the courts are to be extremely careful in exercising the power of judicial review in dealing with assessment made by Departmental Promotion Committees, the executive is also to bear in mind that, in exceptional cases, the assessment of merit made by them is liable to be scrutinised by courts, within the narrow Wednersbury principles or on the ground of mala fides. The judicial power remains but its use is restricted to rare and exceptional situations. The judicial power remains but its use is restricted to rare and exceptional situations. We are making these remarks so that courts or Tribunals may not - by quoting this case as an easy precedent - interfere with assessment of merit in every case. Courts and Tribunals can neither sit as appellate authorities nor substitute their own views to the view of Departmental Promotion Committees. Undue interference by the courts or Tribunals will result in paralysing recommendations of Departmental Committees and promotions. The case on hand can be a precedent only in rare cases." 11. In the instant case, the State-respondents do not deny or dispute the claim of the petitioner that he served the force efficiently and was posted in responsible posts such as Officer-in-charge of different Police Stations and was awarded 41 major awards, etc. On these undisputed facts, it cannot be assumed that the petitioner is not a capable officer. No reason is forthcoming from the State-respondents as to how such apparently meritorious officer could earn the overall grading of "Average". Under the circumstances, there is considerable force in the submission of the learned counsel for the petitioner that the many achievements earned by the petitioner in his career hitherto could have been overlooked or deliberately ignored while preparing his ACRs for the relevant period. To determine whether any prejudice has been caused to the petitioner by the DPC for failure to consider his service record for cross verification of his AGRs, both the ACRs and the service records of the petitioner were called for and were placed before me by the learned Government Advocate on 19.04.2004. I have carefully gone through the entries in the ACRs of the petitioner for the relevant period, i.e., the period commencing from 06.04.1992 to 31.03.2000 and the service record for the corresponding period. What I found therefrom is absolutely contrary to the allegation made by the petitioner in his writ petition. It is interesting to note that except for the period 22.12.1993 to 31.04.1994 (Very Good), 01.04.1994 to 10.07.1994 (Good), 04.12.1994 to 31.03.1995 (Good), 12.05.1997 to 31.03.1998 (Above Average) and 01.04.1999 to 31.03.2000 (Good), the gradings given to him for the remaining longer period are "Average". To compound the matter, his service record for the corresponding period is full of "Censure" and "Severally Censured" remarks. To compound the matter, his service record for the corresponding period is full of "Censure" and "Severally Censured" remarks. No major award or medals appeared to have been given to the petitioner despite the tall claims made by him to the contrary in his writ petition. Notwithstanding my conclusion that the impugned DPC proceeding is vitiated, on the face of the various negative remarks in the service record of the petitioner, the non-placing of the service record before the DPC could not have materially affected the result of the selection process in so far as the petitioner is concerned. Consequently, I am of the firm view that no prejudice can be said to have been caused to the petitioner by such omission. In that view the matter, this case cannot be one of those rare and exceptional cases contemplated by the Apex Court in Badrinath's case (supra) for interference by this Court. 12. For the reasons stated in the foregoing, no strong case is made out in this writ petition by the petitioner for interference by this Court. In the result, the writ petition is hereby dismissed. There shall be no order as to cost.