Vipin Bihari Bhatnagar v. The High Court of Judicature for Rajasthan
2006-04-21
R.S.CHAUHAN, S.N.JHA
body2006
DigiLaw.ai
Judgment R.S. Chauhan, J.-The petitioner has sought his promotion from 08.09.1992, the date from which persons junior to him were promoted, to the post of Upper Division Clerk (hence forth to be referred to as UDC, for short) in the High Court. 2. The brief facts of the case are that on 14.05.1979, the petitioner was appointed as Lower Division Clerk (henceforth to be referred to as LDC, for short) On 14.08.1991, the High Court issued a seniority list of LDCs according to which the petitioner was shown at Serial No. 17. On 08.09.1992, promotions to the post UDC were made. However, while the petitioner was not promoted, six persons who were junior to the petitioner were promoted to the said post. Since, the petitioner was aggrieved by his supersession, he filed a representation on 17.09.1992. However, ironically, on the same day, i.e. on 17.09.1992, five more persons, who were junior to the petitioner, were promoted to the post of UDC. On 11.1992, the petitioner filed a representation against the said promotion. However, the representation went unheeded. A month later, on 112.1992, the petitioner filed his third representation against the two promotion orders. Since, the representation were neither responded to, nor acted upon, the petitioner filed the present writ petition. On 27.04.1993, the respondent filed their reply. From the reply, the petitioner learned about the existence of an adverse entry in his Annual Confidential Report (henceforth, to be referred to as the ACR, for short) of 1991. Surprisingly, the said adverse entry was not officially communicated to the petitioner till 29.07.1993. The petitioner submitted his representation against the said adverse entry. But even before the adverse entries were officially communicated to him, twice promotions were made, namely on 01.03.1993 and 01.05.1993. But even on these dates, the petitioner was not promoted; his juniors were promoted. After the official communication of the adverse entries and during the pendency of the representation filed by the petitioner, again promotions were made, namely on 13.09.1993 and 110.1995. The petitioners representation against the adverse entries was finally rejected on 14.05.1996; the petitioner was eventually promoted to the post of UDC on 28.02.1998. Since, the petitioner has been ignored while his juniors have been promoted, the petitioner has filed the present petition before us. 3. Mr.
The petitioners representation against the adverse entries was finally rejected on 14.05.1996; the petitioner was eventually promoted to the post of UDC on 28.02.1998. Since, the petitioner has been ignored while his juniors have been promoted, the petitioner has filed the present petition before us. 3. Mr. Inderjeet Singh, the learned Counsel for the High Court, has raised a preliminary objection that the petition is not maintainable for non-joinder of necessary parties. According to him, since the petitioner was challenging the promotion orders, he should have arrayed his junior colleagues who were promoted, as respondents. However, he has not done so. Therefore, the necessary parties were not joined in the petition. According to him, the petition deserves to be dismissed on this account alone. 4. Replying to the preliminary objection, Mr. Rajendra Kumar, the learned Counsel for the petitioner, has argued that the petitioner is challenging the illegal action of the High court in not promoting him. He is not challenging the promotion granted to his juniors. In fact, the petitioners only prayer is that he be granted promotion from the date his juniors were so granted the promotion. On the merits of the case, the Counsel for the petitioner has argued that according to Rule 8 of the Rajasthan High Court (Conditions of Service of Staff) Rules, 1953 (henceforth, to be referred to as the Rules, for short,) promotion to the post of UDC is made on the basis of seniority-cum-efficiency. However, repeatedly, the petitioners seniority has been ignored and persons junior to him have been promoted. Secondly, although an adverse entry did exist in his ACR of 1991, but the said entry was not communicated to him till 29.07.1993. Yet, between 1991 and 29.07.1993, on four different occasions promotions were made and he was not promoted. According to him, an uncommunicated adverse entry could not be read against him. Even after the adverse entry was communicated and during the pendency of his representation, two more promotions were made. Even then, he was not promoted. According to the Counsel, the said adverse entry could not be read against him till his representation was disposed off . However, repeatedly persons junior to him have been promoted, while he has been ignored. 5. On the other hand, Mr. Inderjeet Singh, has argued that the petitioner cannot claim promotion as of right. He merely has a right of consideration.
However, repeatedly persons junior to him have been promoted, while he has been ignored. 5. On the other hand, Mr. Inderjeet Singh, has argued that the petitioner cannot claim promotion as of right. He merely has a right of consideration. In fact, his candidacy was duly considered on each occasion. According to Rule 8 of the Rules, the promotion is made on the basis of seniority-cum-efficiency. However, as there was an adverse entry in the ACR, he could not be promoted. Thus, his juniors were rightly promoted. Moreover, the non-communication of the adverse entry has not affected his legal right because eventually his representation against the adverse entry was rejected. Hence, he has been legally denied his promotion. 6. We have heard the learned Counsels and have perused the record which was produced before us. 7. In the present case, the petitioner is not so much challenging the promotion orders of other employees, of his juniors, as he is challenging the omission committed by the respondent in not promoting him when his juniors were promoted. The crux of his plea is that the respondent has illegally denied him his rightful promotion while ignoring the settled principles of law. Hence, the controversy is restricted only between him and the respondent. Hence, there was no need for him to array his juniors as respondent parties. This view is fortified by the case of Brij Nath Pandey vs. State of U.P. & Ors., 2001 (9) SCC 398 in that case the appellant was denied his promotion in the selection grade when his juniors were promoted. An objection was raised that the appellant has not arrayed his juniors as party in the petition. However, the Honble Supreme Court rejected the said objection by holding that “the dispute is purely between the appellant and the respondent State. If the adverse remarks could not have been taken into consideration, he has made out a case for reconsideration of his case. While doing so it is not necessary to hear other persons who might be affected.” Therefore, the preliminary objection raised by the Counsel for the respondent is unacceptable. 8. The importance of ACR during the service period of a person cannot be under-estimated. The ACR affects various aspects of a persons service, ranging from his increments to his promotion, from his crossing the efficiency bar to his compulsory retirement.
8. The importance of ACR during the service period of a person cannot be under-estimated. The ACR affects various aspects of a persons service, ranging from his increments to his promotion, from his crossing the efficiency bar to his compulsory retirement. In the case of State of U.P. vs. Yamuna Shanker Misra, 1997 (4) SCC 7 the Honble Supreme Court emphasized the purpose of the ACR when it held, “the object of writing the confidential reports and making entries in them is to give an opportunity to a public servant to improve excellence. Article 51-A (j) (of the Constitution of India) enjoins upon every citizen the primary duty to constantly endeavor to prove excellence, individually and collectively, as a member of the group. Given an opportunity, the individual employee strives to improve excellence and thereby efficiency of administration would be augmented. The officer entrusted with the duty to write confidential reports, has a public responsibility and trust to write the confidential reports objectively, fairly and dispassionately while giving, as accurately as possible, the statement of facts on an overall assessment of performance of the subordinate officer.” In catena of cases, the Honble Supreme Court has stressed on the objective recording of the ACR. In the case of S. Ramachandra Raju vs. State of Orissa, 1994 Supp (3) SCC 424 the Apex Court held, “it is needless to emphasis that the career prospect of a subordinate officer/employee largely depends upon the work and character assessment by the reporting officer. The latter should adopt fair, objective, dispassionate and constructive, commends/comments in estimating or assessing the character, ability, integrity and responsibility displayed by the concerned officer/employee during the relevant period for the above objectives if not strictly adhered to in making an honest assessment, the prospect and career of the subordinate officer being put to great jeopardy.... Therefore, writing the confidential reports objectively and constructively and communication thereof at the earliest would pave the way for amends by erring subordinate officer or to improve the efficiency in service.” 9. Since, the purpose of the ACR is to point out the deficiency of a subordinate employee, it is imperative that the adverse entry be communicated to him at the earliest. In case the adverse entry is not communicated within a reasonable time, it looses its very purpose, its importance.
Since, the purpose of the ACR is to point out the deficiency of a subordinate employee, it is imperative that the adverse entry be communicated to him at the earliest. In case the adverse entry is not communicated within a reasonable time, it looses its very purpose, its importance. The communication of adverse entry is also a requirement of principles of natural justice, as the existence of such entry adversely affects the promotional prospects of an employee. It is precisely for this reason that the Honble Supreme Court in the case of Gurdial Singh Fijji vs. State of Punjab, 1979 (2) SCC 368 held as under:- “The principles is well-settled that in accordance with the rules of natural justice an adverse report in a confidential roll cannot be acted upon to deny promotional opportunities unless it is communicated to the person concerned so that he has an opportunity to improve his work and conduct or to explain the circumstances leading to the report. Such an opportunity is not an empty formality, its object partially being to enable the superior authorities to decide on a consideration of the explanation offered by the person concerned, whether the adverse report is justified.” 10. Similar view was held in the case of Brij Mohan Singh Chopra vs. State of Punjab, 1987 (2) SCC 188 wherein the Apex Court said:-“Whenever an adverse entry is awarded to a Government servant it must be communicated to him. The object and purpose underlying the communication is to afford an opportunity to the employee to improve his work and conduct and to make representation to the authority concerned against those entries. If such a representation is made it is imperative that the authority should consider the representation with a view to determine as to whether the contents of the adverse entries are justified or not. Making of a representation is valuable right to a government employee and if the representation is not considered, it is bound to affect him in his service career, as in Government service grant of increment, promotion and ultimately premature retirement all depend on the scrutiny of the service records.” 11. The principles which emerge from above discussion are firstly, the adverse entry should be communicated to the concerned employee within a reasonable time. Secondly, the representation made by the employee against the entry should be considered objectively.
The principles which emerge from above discussion are firstly, the adverse entry should be communicated to the concerned employee within a reasonable time. Secondly, the representation made by the employee against the entry should be considered objectively. Thirdly, an uncommunicated entry cannot be read against the employee so as to deny him a promotion. Fourthly, even during the pendency of the representation, the entry cannot be read against the employee so as to deny him the promotion. Lastly it is only after the representation has been considered and rejected, only after the adverse entry has been confirmed, that the same can be read against the employee for the purpose of promotion. 12. In the present case, the adverse entry was made in the ACR for the year 1991. The said entry was not communicated to the petitioner till 29.07.1993. Although the entry was not communicated to him, the petitioner was denied promotion on four occasions, namely on 08.09.1992, 17.09.1992, 01.03.1993 and 01.05.1993. As soon as the adverse entry was communicated to him, he made a representation to the respondent. However, while the representation was pending, the petitioner was further denied promotion on two occasions, namely on 13.09.1993 and 110.1995. The petitioners representation was finally rejected on 14.05.1996. Hence, on six occasions the petitioner was denied his promotion in disregard to the principle annunciated by the Honble Supreme Court as mentioned above. Clearly the petitioner has been denied his rightful promotion by the wrongful actions of the respondent. 13. In the result, we allow this petition and direct the respondent to promote the petitioner to the post of UDC w.e.f. 08.09.1992, the date from which persons junior to him were promoted. The petitioner shall also be entitled to all consequential benefits. The respondent is further directed to create a supernumerary post. This Judgment shall be complied with within a period of three months from the date of receipt of the certified copy of the Judgment . No order as to costs.