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2006 DIGILAW 236 (GAU)

Harihar Deka v. Gauhati High Court

2006-03-10

AMITAVA ROY

body2006
JUDGMENT Amitava Roy, J. 1. Being aggrieved by his superession in the matter of promotion to the post of Superintendent and Assistant Registrar, in the service of the Gauhati High Court (hereafter referred to as the High Court), the petitioner seeks to invoke the extraordinary jurisdiction of this Court for redress. 2.1 have heard Mr. S.S. Dey, advocate for the petitioner and Mr. B.C. Das, senior advocate and standing counsel of the High Court for the Official Respondents. None appears for the other respondents. 3. The factual prologue essential for better appreciation of the rival assertions is cullable from the pleadings. The petitioner's version is that he, a graduate in Arts from the Guwahati University, on being selected was appointed as Lower Division Assistant (hereafter referred to as the LDA) in the establishment of the High Court and joined the post on 28.9.1972, the very date of the appointment order. The respondent No. 4 being similarly appointed, however, joined later on 3.10.1972. Respondents 5, 6 and 7 who were subsequent thereto appointed as LDA were along with the petitioner and the respondent No. 4 confirmed in the said post by Order dated 22.6.1977. The petitioner was thereafter promoted to the post of UDA on 24.2.1982 and further rose to the rank of Superintendent w.e.f. 2.5.1997. The private respondents also in due course made their way up through the ranks, according to the petitioner, by wrongly superseding him. The service profiles of the petitioner and the private respondents are available at a glance in the following table. Posts Petitioner Respdt. No.4 Respdt. 5 Respdt 6 Respdt 7 LDA 28.9.1972 3.10.1972 12.6.1973 UDA 24.2.1982 10.12.1982 13.9.1948 22.4.1995 8.10.1994 Supdt. 2.5.1997 21.9.1995 21.9.1995 1.6.1998 1.6.1998 A.R. 12.8.2002 21.6.2003 21.6.2003 2.9.2003 4. The petitioner has maintained that though he was in the grade of UDA senior to all the private respondents, he was at the first instance superseded in the matter of promotion to the post of Superintendent by respondent Nos. 4 and 5 on 21.9.1995. His representation dated 31.10.1995 ventilating his grievance on that count was rejected, the decision being communicated by the official letter dated 2.4.1996. It has been averred that though the rejection Order did not disclose any reason therefor, the petitioner came to understand subsequently that the concerned authorities had taken note of a disciplinary proceeding initiated against him during 1992-93. 5. His representation dated 31.10.1995 ventilating his grievance on that count was rejected, the decision being communicated by the official letter dated 2.4.1996. It has been averred that though the rejection Order did not disclose any reason therefor, the petitioner came to understand subsequently that the concerned authorities had taken note of a disciplinary proceeding initiated against him during 1992-93. 5. According to the petitioner, by Order dated 10.12.1992, he was placed under suspension while serving as UDA pending drawal of departmental proceeding. Following the completion thereof, the disciplinary authority by Order dated 14.10.1993 imposed a penalty of fine of Rs. 200. He was, however, reinstated on revocation of his suspension. In the departmental appeal, the hon'ble the Chief Justice was pleased to review the Order of penalty and relieved him of the fine. According to the petitioner, therefore, in view of the above exoneration, the factum of disciplinary proceeding could not have been noticed to deny him promotion to the post of Superintendent. His further grievance is that thereafter all the respondents on different dates were promoted to the next higher post of Assistant Registrar again superseding him. The petitioner, on making enquiries after his supersession by the respondent No. 4 to the post of Assistant Registrar on 12.8.2002 came to learn that his case had not been considered therefore in view of some adverse remarks in his ACR. He accordingly made a representation on 10.4.2003 before the Registrar General of the High Court with a prayer to be communicated with the adverse remark(s), if any. By memorandum dated 20.5.2003, the Deputy Registrar (Administration) conveyed to the petitioner the following adverse remarks in his ACR for 2001. Inattentive, irregular in attendance, shirks responsibility, highly unsatisfactory. 6. The petitioner represented against the adverse remarks before the Registrar General only to be intimated by the letter dated 20.6.2003 of the Joint Registrar that the same had been rejected. The respondent Nos. 5 and 6 were, next, promoted to the post of Assistant Registrar on 21.6.2003. The respondent No. 7 was also promoted to the said post on 2.9.2003. The petitioner continues to serve as on date as Superintendent. 7. The respondent Nos. 5 and 6 were, next, promoted to the post of Assistant Registrar on 21.6.2003. The respondent No. 7 was also promoted to the said post on 2.9.2003. The petitioner continues to serve as on date as Superintendent. 7. The petitioner has contended that he being admittedly senior to the private respondents in the grade of UDA and the criteria for promotion to the post of Superintendent and Assistant Registrar being seniority-cum-merit or seniority with due regard to suitability, the impugned promotions being in illegal supersession of his superior claim are liable to be adjudged null and void and an appropriate writ be issued directing the official respondents to expunge the adverse remark in his ACR of 2001 and promote him to the aforementioned post w.e.f. the date his juniors in service had been promoted. 8. In the counter filed by the respondent No. 2 while admitting that the petitioner was senior to the private respondents in the post of LDA and UDA, it has been pleaded that the case of the petitioner along with respondent No. 4 and two others, inter alia, Ramani Kalita and Syamal Bezbaruah was considered for promotion to the post of Superintendent and the respondent No. 4 on a comparative assessment being found to be most suitable was recommended therefor. Subsequent thereto, on a consideration of the relevant ACRs, Shri Debendra Nath Goswami and Shri Kamala Kanta Barman (respondent No. 5) were promoted to the said post. According to the answering respondent, the promotions were made on selection based on merit as prescribed by Rule 6 of the Gauhati High Court Service (Appointment, Conditions of Service and Conduct) Rules, 1967, (hereafter referred to as the Rules). It has been asserted that the promotion of respondents 4 and 5 to the post of Superintendent was strictly in accordance with the Rules. Denying the allegation of supersession, it has been maintained that the case of the petitioner was duly considered but he could not be favoured with promotion, not having been found fit. It has been further averred that though the Order imposing penalty was reviewed and the petitioner was absolved of the liability to pay the amount by Order dated 8.2.1994, he was cautioned to be careful in future. It has been further averred that though the Order imposing penalty was reviewed and the petitioner was absolved of the liability to pay the amount by Order dated 8.2.1994, he was cautioned to be careful in future. The answering respondent contended that the promotions to the post of Assistant Registrars were also made from candidates found suitable in the Grade of Superintendent Grade II(C) on the basis of merit on due evaluation of the related ACRs and service records. The petitioner not having made the mark on a comparative evaluation of merit, he could not be promoted. The private respondents having been assessed to be more meritorious than the petitioner, the plea of supersession was misconceived, they asserted. 9. Mr. Dey in the above state of pleadings has argued that rule 6 of the Rules being silent as to the criteria for promotions in the service of the High Court, the yardstick of seniority-cum-merit is applicable and, therefore, the promotions of the private respondents to the post of Superintendent and Assistant Registrar being in brazen supersession of the petitioner's superior right are per se illegal and are liable to be adjudged as such. In absence of any adverse remark or disqualifying factor rendering the petitioner unfit, denial of promotion to him to the post of Superintendent by overlooking his seniority in service is ex facie illegal, he urged. As admittedly the adverse remarks in the petitioner's ACR for the year 2001 had not been communicated to him before the purported consideration of his case and other candidates culminating in the promotion of respondent No. 4 to the post of Assistant Registrar on 12.8.2002, the related process is vitiated by an incurable illegality and is, thus, liable to be quashed. The unexplained delay in the communication of the adverse remarks to the petitioner and non-consideration of his representation against the same before initiating the exercise ending in the promotion of respondents 5 and 6 to the post of Assistant Registrar, according to the learned Counsel, has rendered the selection process unsustainable in law for which the promotions of the said respondents are liable to be declared non est. Mr. Mr. Dey has contended that the promotion of respondents 5, 6 and 7 in close succession following the rejection of the petitioner's representation against the adverse remarks betrays an unfair approach on the part of the official respondents warranting intervention of this Court in the interest of justice. 10. Mr. Das, as against this has argued with reference to the rules 6 and 18 that the criteria for promotion in the service of the High Court had consistently been merit and that at no point of time seniority had been conceded, the decisive primacy. As it is, no employee has a fundamental right to promotion and the case of the petitioner having been consistently considered for both the posts in the touch stone of merit as prescribed by the Rules, his contentions bearing on supersession founded on seniority is misconceived, he urged. As Rule 18 in categorical terms mandates the benchmark of merit for promotion in the higher grades of ministerial service, according to the learned senior counsel, it is inconceivable that seniority can be the dominant yardstick for effecting promotions to even higher grades, i.e., Assistant Registrars and above. According to Mr. Das, the expression "absolute discretion" appearing in rule 6 empowers the hon'ble the Chief Justice to select in his wisdom the most suitable norm for promotion in the services of the High Court in the interest of administrative excellence. Mr. Das argued that had the rule making authority intended to prescribe seniority as criteria for promotion, no discretion would have been left with the hon'ble the Chief Justice in the matter. Rule 6, therefore, correctly interpreted ordains merit to be the measure for assessing the suitability for, promotions in the High Court Service. While conceding that no decision in writing as such is discernible from the records to the above effect, Mr. Das emphasised that the consistent practice had been to cause an evaluation of last 5 years of ACRs of the candidates concerned to be made by a Committee of Judges constituted by the hon'ble the Chief Justice and effecting promotions on the basis of the recommendations of the said body. The Rules read as a whole do not in any view of the matter admit seniority as the criteria for promotion, he urged. The Rules read as a whole do not in any view of the matter admit seniority as the criteria for promotion, he urged. The learned senior counsel contended that though the proceeding of the Assessment Committee prior to the promotion of respondents 5 and 6 was held on 17.6.2003 and the petitioner's representation against adverse remarks was considered and rejected on 20.6.2003, the adverse remarks in the petitioner's ACR for the relevant year having been retained finally, the comparative assessment of the candidates including the petitioner while noticing such remarks did not vitiate the exercise in any manner. Mr. Das relying on the records has submitted without prejudice to the above that even otherwise on an overall appraisal of the petitioner's performance during the relevant years, the decision would not have been different. Mr. Das while relying on the official records in support of his submissions cited the following authorities to reinforce the same. R.L. Butail v. Union of India and Ors. (1970) II LLJ 514 SC, Shri Gurdial Singh Fijji v. State of Punjab and Ors. [1979] 3 SCR 518, Y.V. Thatte v. State of Maharashtra and Anr. 1984 (2) SLR 308, K. Samantaray v.National Insurance Co. Ltd. AIR 2003 SC 4422 , H.C. Puttaswamy and Ors. v. the Hon'ble Chief Justice of Karnataka High Court, Bangalore and Ors. 1991 Suppl (2) SCC 421, Bangalore Medical Trust v. B.S. Muddappa and Ors. [1991] 3 SCR 102, Y. Sashimohan Singh and Ors. v. Gurumayum Satyabati Devi and Ors. 1998 (3) GLT 428. 11. In reply, Mr. Dey has urged that there being no provision in the Rules or otherwise empowering the Registry to appreciate the performance of any employee in the High Court service, the adverse remarks recorded in the petitioner's ACR are non est in law. There being no decision of the hon'ble the Chief Justice prescribing merit to be the criteria for promotion in service, the interpretation of rule 6 sought to be provided is misplaced, he urged. According to him, the underlying purpose of timely communication of any adverse remark being to provide an opportunity to the employee concerned to rectify his faults and offset his lapses, the inordinate delay in communicating such remarks to the petitioner and admitted consideration of such un-communicated remarks while recommending promotions to the private respondents has rendered the selection process invalid entitling the petitioner to the reliefs claimed. Mr. Mr. Dey has rested his submissions on the decisions of the Apex Court in Shri Gurdial Singh Fijji (supra), Shri Vimal Kumari v. State of Haryana and Ors. (1998) 8 SCC 114. 12. I have extended my thoughtful consideration to the rival arguments. The assertions of the parties having been built around rules 6 and 18 of the Rules primarily, it would be expedient to initiate the adjudicative process therewith. The Rules framed in exercise of powers under Article 229 of the Constitution of India, provide, inter alia, the mode of recruitment to various posts in the service. The posts have been classified to be gazetted and non-gazetted. While the post of LDA and UDA amongst others are included in the ministerial establishment (non-gazetted) under Class III, the posts of Superintendent and Assistant, Registrar are gazetted falling under Class II(C) and Class II(A) respectively. Class II(C) posts in terms of Rule 3 are included in the High Court (Ministerial) Service. 13. Whereas rule 6 lays down that all appointments to the posts in the Service of the High Court gazetted rank and all promotions would be made by the hon'ble the Chief Justice in his absolute discretion, rule 7(3) mandates that appointments to the post of Assistant Registrar would be made from the State Judicial Service Grade III or by promotion from among the gazetted officers of the High Court's Service belonging to Class 1KB), Class II(C) or Class II(D) or from among Advocates of not less than five years continuous practice at the Bar. The provisos thereto interdict appointments to the post of Assistant Registrar (Judicial) and Assistant Registrar (Accounts) from amongst Gazetted Officers of the High Court as above unless possessed of a Law Degree or requisite training in accounts or B.Com. in Accounts respectively. Rule 18 mandates that vacancies in the higher grades of the Ministerial Service would be filled according to merit, and, ordinarily by promotion from the lower grades, seniority being counted only when merit is equal. While rule 63 recognizes the residuary powers of the hon'ble the Chief Justice to make such orders from time to time, as he would deem fit with regard to matters incidental or ancillary to the Rules but not specifically provided for therein, rule 63A empowers him to relax the age or qualifications for appointment to the service of the High Court in appropriate cases according to his discretion. 14. A plain reading of the above provisions of the Rules makes it manifestly clear that appointments to the higher grade of ministerial service should be according to merit and ordinarily by promotion, seniority to be relevant only when the merit of the contending candidates is equal. In view of the classification of posts in rule 3 of the Rules and the noted placement of the post of Superintendent, it is apparent that it is located in the higher grades of ministerial service and, therefore, evidently promotion to the said post has to be in terms of the edict of Rule 18 on the basis of merit. Noticeably rule 6 confers the hon'ble the Chief Justice with absolute discretion in matters of appointments to posts of gazetted rank in the service of the High Court as well as for promotions. Whereas it is contended on behalf of the petitioner that as the said provision exhibits absence of any concrete guidelines in the Rules for promotions and, therefore, seniority-cum-merit essentially has to be the yardstick to evaluate the suitability of the competing candidates is urged on behalf of the official respondents that it bears the insignia of empowerment of the hon'ble the Chief Justice to select one of the many criteria available for adjudging the suitability for appointment or promotion as envisaged therein. Before recording the eventual conclusion on this facet of the controversy, discreet it would be to have a survey of the authorities cited at the Bar. 15. The Apex Court in H.C. Puttaswamy and Ors. supra, emphasized that the object of Article 229 of the Constitution of India is to secure the independence of the High Court by vesting the authority in the Chief Justice to appoint the supporting staff with complete control over them. 16. The true purport of discretion in administrative functioning was dilated upon by the Apex Court in Bangalore Medical Trust, (supra), expressing itself as hereunder. Discretion is an effective tool in administration. But wrong notions about it results in ill-conceived consequences. In law it provides an option to the authority concerned to adopt one or the other alternative. But a better, proper and legal exercise of discretion is one where the authority examines the fact, is aware of law and then decides objectively and rationally what serves the interest better. But wrong notions about it results in ill-conceived consequences. In law it provides an option to the authority concerned to adopt one or the other alternative. But a better, proper and legal exercise of discretion is one where the authority examines the fact, is aware of law and then decides objectively and rationally what serves the interest better. When a statute either provides guidance or rules or regulations are framed for exercise of discretion then the action should be in accordance with it. Even where statutes are silent and only power is conferred to act in one or the other manner, the Authority cannot act whimsically or arbitrarily. It should be guided by reasonableness and fairness. 17. The same view was reiterated by this Court in Y. Sashimohan Singh and Ors. (supra), where it ruled that discretion connotes the power to make a preference between the alternatives. It quoted with approval the following passage from Secretary of State Education and Science v. Tameside MBC (1977) AC 1014. The very concept of administrative discretion involves a right to choose between more than one possible course of action upon which there is a room for reasonable people to hold differing opinions as to which is to be preferred. 18. In K. Samantaray (supra), the Apex Court reiterated the oft-quoted principle that no employee has a right to be promoted but only to be considered therefor. It, however, held that in absence of any statutory rule, it is for the employer to stipulate the criteria for promotion specify the area and parameters of weightage to be extended to respective merit and seniority so long as the policy is not in colourable exercise of power and has the effect of violating any statutory provision. 19. In Vimal Kumari (supra), the appellant therein was promoted from Tailoring Instructor to Superintendent on the basis of merit there being no departmental provision to specifically regulate the criteria of promotion. The draft rules incorporating the service conditions though prepared had not been enforced. The promotion of the appellant and Ors. was assailed by some employees on the ground that though eligible in terms of the draft rules, they had been illegally bypassed. The draft rules incorporating the service conditions though prepared had not been enforced. The promotion of the appellant and Ors. was assailed by some employees on the ground that though eligible in terms of the draft rules, they had been illegally bypassed. The High Court of Punjab and High Court upheld the challenge and directed consideration of the cases of those employees as a result whereof on completion of the exercise, the appellant was reverted to the post of Tailoring Technician. The Apex Court in appeal upheld the appellants' assailment of the High Court' verdict observing that in face of the intention not to enforce or notify the draft rules recourse thereto could not have been taken. It ruled that such draft rules could not be treated to be rules made under Article 309 of the Constitution to legally exclude the operation of the administrative/executive instructions on the subject(s) covered thereby nor can such rules exclude issuance of executive instructions for regulating conditions of service of the employees working under them. In this backdrop, noticing the absence of any rule made under Article 309 of the Constitution, the Apex Court held that seniority could be adopted as the reasonable basis for the appellant's promotion. The opinion so expressed by the Apex Court has to be understandably construed in the contextual facts and cannot be interpreted to approve seniority as the yardstick for promotion even if any other bench mark, therefore, can be otherwise logically deciphered from the scheme of an extant rule. 20. The precedential law on interpretation of statutes as would be relevant for the instant purpose may also be profitably noticed at this stage. The Apex Court in Anwar Hasan Khan v. Mohd. Shaft and Ors. AIR 2001 SC 2984 , held that for interpreting a particular provision of an Act, import and effect of the meaning of the words and phrases used in the statute have to be gathered from the text, the nature of the subject matter and the purpose and intention of the statute. It underlined the cardinal principle of statutory interpretation that efforts should always be to construe the provisions by adopting a harmonious construction thereby avoiding a conflict. It underlined the cardinal principle of statutory interpretation that efforts should always be to construe the provisions by adopting a harmonious construction thereby avoiding a conflict. It held that the statute or rules read there under should be made as a whole and one provision should be construed with reference to the other to make it consistent with the object sought to be advanced. 21. That a statute ought to be construed so as to fructify the intention of the Legislature and achieve the purpose of the legislation has been succinctly summarized in the following extract of the decision of the Apex Court in Tata Engineering and Locomotive Co. Ltd. v. State of Bihar and Anr. (2000) 5 SCC 346 . Statutes, it is often said, should be construed not as theorems of Euclid but with some imagination of the purposes which lie behind them and to be too literal in the meaning of words is to see the skin and miss the soul. The method suggested for adoption, in cases of doubt as to the meaning of the words, the context, which gives colour, the context, the subject-matter, the effects and consequences or the spirit and reason of the law. The general words and collocation or phrases, howsoever, wide or comprehensive in their literal sense are interpreted from the context and scheme underlying in the text of the Act. The decision in Utkal Contractors and Joinery (P.) Ltd. case also emphasizes the need to construe the words in a provision in the context of the scheme underlying the other provisions of the Act as well, which ultimately was considered to be in tune with the object set out in the statement of the Objects and Reasons and in the Preamble. 22. In Bhatia International v. Bulk Trading S.A. and Anr. [2002] 2 SCR 411, the Apex Court speaking through hon'ble S.N. Bhairava, J, remarked that notwithstanding the conventional principle that the duty of Judges is to expound and not to legislate, the courts have taken the view that the judicial art of interpretation and appraisal is imbued with creativity and realism. 23. In State of Gujarat v. Salimbhai Abdulgaffar Shaikh and Ors. 2003 CriLJ 4348, the Apex Court touched the same note while expressing itself as hereunder. It is a well-settled principle that the intention of the Legislature must be found by reading the statute as a whole. 23. In State of Gujarat v. Salimbhai Abdulgaffar Shaikh and Ors. 2003 CriLJ 4348, the Apex Court touched the same note while expressing itself as hereunder. It is a well-settled principle that the intention of the Legislature must be found by reading the statute as a whole. Every Clause of a statute should be construed with reference to the context and other Clauses of the Act, so as, as far as possible, to make a consistent enactment of the whole statute. It is also the duty of the court to find out the true intention of the Legislature and to ascertain the purpose of the statute and give full meaning to the same. The different provisions in the statute should not be interpreted in the abstract but should be construed keeping in mind the whole enactment and the dominant purpose that it may express. 24. It is in this conspectus of the judicially evolved principles that the contesting pleas of the parties have to be tested. The conditions of recruitment by appointment and/or promotion to the posts involved are admittedly governed by the Rules. The conditions of eligibility and the avenues in clear terms are outlined thereby. Rule 18 prescribes in no uncertain terms merit to be the criteria for filling up higher grades of ministerial service, seniority to be referred to only when the merit is equal. It is, thus, more than apparent that seniority alone or seniority-cum-merit is not the benchmark for appointment/promotion to the higher grades of ministerial service of the High Court. There is no wrangle at the Bar that the post of Superintendent is placed in the higher grades of ministerial service as is explicit from rule 3. Logically, therefore, promotion to the post of Superintendent from the feeder post of UDA has to be on the basis of merit, seniority being pertinent only when the merit of the candidates is at par. 25. Having regard to the criteria, thus, stipulated for promotion to the post of Superintendent, it would be too incongruent and illogical to conclude that promotion to the post of Assistant Registrar in Class II(A) of the Service would be governed by the yardstick of seniority or seniority-cum-merit. 25. Having regard to the criteria, thus, stipulated for promotion to the post of Superintendent, it would be too incongruent and illogical to conclude that promotion to the post of Assistant Registrar in Class II(A) of the Service would be governed by the yardstick of seniority or seniority-cum-merit. In other words, merit having been enjoined to be the measure for assessing the suitability of the eligible candidates for promotion to the post of Superintendent, seniority cannot rationally be conceded a dominion in the matter of promotion to the next higher post of Assistant Registrar wherefor Superintendent is a feeder post. Viewing the scheme of the Rules bearing on promotion, I do not feel persuaded to deduce that as rule 6 omits to prescribe a criteria for promotion to the post of Assistant Registrar thereby it is incumbent on the official respondents to adhere to the principle of seniority-cum-merit for promotion thereto. In my opinion the expression absolute discretion endows the hon'ble the Chief Justice with a range of options of norms to be adopted for appointment and/or promotion to the posts as comprehended in rule 6. It cannot in any view of the matter, connote absence of any guideline for such exercise. The discretion conferred on the hon'ble the Chief Justice is only an index of his prerogative in the matter of appointment and/or promotion and his authority to prescribe suitable precepts therefor. The framework of the Rules appertaining to the classification of posts and appointments and promotions thereto adequately provides for the conditions of eligibility of the candidates and the norms to adjudge their suitability. Though absence of any Order of the hon'ble the Chief Justice or administrative guidelines prescribing merit to be the criteria for promotion to post of Assistant Registrar has been admitted on behalf of the official respondents, the records relating to the appointments and promotions to the post of Superintendent and Assistant Registrar unequivocally demonstrate that the said criteria had been consistently adhered to for the said purposes. The prescription of merit for promotion to the post of Assistant Registrar is, therefore, fully in tune with the letter and spirit of the edict of Rule 18. The prescription of merit for promotion to the post of Assistant Registrar is, therefore, fully in tune with the letter and spirit of the edict of Rule 18. It being the continuing practice of this Court to apply merit as the touchstone for evaluating the suitability of the candidates for promotion to the post of Assistant Registrar, it has with efflux of time acquired the force of law - Cujus curiae est lex curiae (practice of the court is law of the court). Bearing in mind the elementary principles of statutory interpretation referred to hereinabove and the demand of harmonious construction of the provisions of a legislation involved, I am of the firm view that merit has been and is the test for appraisal of the suitability of a candidate for promotion to the post of Superintendent and Assistant Registrar in the service of this Court. The contention to the contrary, therefore, fails. 26. To deal with the grievance concerning non-consideration of the case of the petitioner for promotion to the post of Superintendent in time and that of the Assistant Registrar reference to the relevant official records is indispensable. Records bearing HCV-13/89 of the Establishment branch of this Court discloses that on 1.8.1995 a note was put up by the then Registrar (Judicial) forwarding the names and particulars of the eligible UDAs for filling up a vacant post of Superintendent that had fallen vacant w.e.f. 1.4.1995 due to the demise of Hem Chandra. Names of Shri Ramani Kalita, Shri Harihar Deka (petitioner), Shri Shyamal Bezbaruah and Shri Hrishikesh Chakrabarty (respondent No. 4) were forwarded being placed in the same Order in terms of their seniority. It was, inter alia, mentioned therein that the petitioner had been found guilty in a departmental proceeding culminating in a fine of Rs. 200 and that though he was absolved of the liability to make the payment, he was not exonerated of the charges proved. The ACR of the respondent No. 4 was stated to be comparatively better than the other three incumbents and, therefore, he was rated above the others. It was further stated that merit was the criteria for promotion and that seniority would prevail when merit was equal. The recommendation was accepted as above by the hon'ble the Chief Justice then in office. 27. It was further stated that merit was the criteria for promotion and that seniority would prevail when merit was equal. The recommendation was accepted as above by the hon'ble the Chief Justice then in office. 27. In a separate exercise made on 19.9.1995, the respondent No. 5 was recommended for promotion to the post of Superintendent on officiating basis. The related Order in the note sheet reveals that on a consideration of the ACRs amongst others of the petitioner, he was a held to be unsuitable for such promotion. Accordingly on 21.9.1995, by two separate notifications the respondent No. 4 and respondent No. 5 were promoted to the post of Superintendent, the latter on officiating basis as decided. The appeal preferred by the petitioner assailing the above promotions was rejected by the hon'ble the Chief Justice on a, consideration thereof. In the write up by the Registry on the appeal, it was, inter alia, mentioned that though the petitioner had been relieved from making the payment of the amount of fine imposed in the disciplinary proceeding, he was not cleared of the charge vide Order dated 1.2.1994 of the hon'ble the Chief Justice. 28. I have perused the aforementioned communications and the decision preceding the same, which expressly proclaim that the petitioner thereby was only excused of the liability to pay the amount of fine but was not granted a clean chit qua the charges. Having regard to the criteria for promotion to the post of Superintendent the background of the disciplinary proceeding and the assessment of his performance reflected in his ACRs for the relevant years, it is, therefore, not possible to hold that either his case was not considered in due time for his advancement in career to the post of Superintendent by way of promotion in accordance with the Rules or that he was denied the same on irrelevant or extraneous considerations. Under Rule 39, a character roll for each Gazetted Officer and member of the ministerial establishment has to be maintained and the Registrar (now Registrar General) is empowered to make entries on the basis his personal knowledge and of annual confidential reports submitted to him by the Superintendents though the Assistant Registrar and the Deputy Registrar. The plea of want of authority of the Registrar to draw up and maintain the ACRs of the Ministerial staff is, thus, unsustainable. 29. The plea of want of authority of the Registrar to draw up and maintain the ACRs of the Ministerial staff is, thus, unsustainable. 29. Apopros promotion to the post of Assistant Registrar, it transpires from the file No. HCV-17/2002 that a meeting of the departmental promotion committee comprised of two hon'ble Judges of this Court was held on 17.6.2002 to consider the cases of eligible candidates for promotion for filling up one post of Assistant Registrar from general candidates. The exercise was confined to the officers belonging to Class II(C) of the Services, i.e., Superintendents including the petitioner and the private respondents. Their inter se position in Order of seniority and gradings for the last five years are set out hereinbelow : Sl. No. Name 1997 1998 1999 2000 2001 1. Shri Hrishikesh Chakraborty, (respondent No.4) Good Good Good Good Very Good 2. Shri Kamala Kanta Barman Nil Very much hard working. Can be categorized as very good. Very much Hard Working. Can be categoriszed as very good. Good Good 3. Petitioner Average Satisfactory Average Aver age Inattentive, Irregular in Attendance, Shirks respon- Sibility, highly Unsatisfactory 4. Shri Shymal Bezbaruah Good Satisfactory Nil Not bad DP pending 5. Shri Jadav Ch. Deka, respondent No.7 Good Good Good Good DP pending 6. Shri Mahesh Ch. Sharma good Respondent No.6 Very Very good Very good Very Good Very good 7. Smt. Dipali Bora of late. Average Satisfactory Good Good Average She Is showing improvement 30. On a consideration of the above, the committee recommended Shri Hrishikesh Chakraborty (respondent No. 4), the Sr. most Superintendent for promotion as Assistant Registrar subject to relaxation of the requirement of qualification of a Law degree under rule 63A of the Rules by the hon'ble the Chief Justice. The recommendation being accepted by the hon'ble the Chief Justice, the respondent No. 4 was accordingly promoted by Order dated 14.8.2002. 31. Two posts of Assistant Registrar thereafter having fallen vacant, the matter was referred to the concerned departmental promotion committee for considering the cases of the eligible candidates. In the meeting held on 17.6.2003, the committee comprised of two hon'ble Judges of this Court for reasons recorded in the minutes thereof confined the scrutiny only to the incumbents in Grade II(C) of the Service. The candidates at SI. 2 to 7 as above were freshly evaluated for the purpose. In the meeting held on 17.6.2003, the committee comprised of two hon'ble Judges of this Court for reasons recorded in the minutes thereof confined the scrutiny only to the incumbents in Grade II(C) of the Service. The candidates at SI. 2 to 7 as above were freshly evaluated for the purpose. Their ACRs for the year 2002 were also taken note of. For ready reference the gradings of the said officers for the year 2002, are set out herein below. Sl. No. Name Year Rating 1. Shri Kamala Kanta Barman, respondent No.5 2002 Very good 2. Petitioner 2002 Average 3. Shri Shyamal Bezbaruah 2002 He is under suspension. D.P. pending 4. Shri Jadav Ch. Deka, Respondent No.7 2002 Sincere and hard working officer 5. Shri Mahesh Ch. Sharma Respondent No.6 2002 Very good 6. Smt. Dipali Bora 2002 Very good person, she Should be able to realize Her subordinate staff. 32. The committee on a consideration of the ACRs of the said officers recommended Shri Kamala Kanta Barman, respondent No. 5 and Shri Mahesh Chandra Sharma, respondent No. 6 for promotion to the post of Assistant Registrar and Assistant Registrar (Accounts). The committee further recommended for relaxation of the requirement of qualification of a Degree in Law for respondent No. 5 while noting that the respondent No. 6, Shri Mahesh Ch. Sharmah had necessary training in accounts. The case of the petitioner though considered was rejected on the ground that he had never been graded as good during the relevant years, his performance being rated in 1997,1999 and 2000 as average and satisfactory in 1998. The committee also took note of the adverse remarks in his ACR for the year 2001 and, thus, concluded on an over all consideration of the above that he was not suitable for promotion to the post of Assistant Registrar. The recommendation of the committee being endorsed by the hon'ble the Chief Justice, by notification dated 21.6.2003, the respondent Nos. 5 and 6 were promoted to the post of Assistant Registrar (Judicial) and Assistant Registrar (Accounts) respectively. The records do not disclose, however, that the adverse remarks in the ACR of the petitioner for the year 2001 had in the meantime been communicated to him though acted upon by the committee while adjudging him unsuitable for promotion. 5 and 6 were promoted to the post of Assistant Registrar (Judicial) and Assistant Registrar (Accounts) respectively. The records do not disclose, however, that the adverse remarks in the ACR of the petitioner for the year 2001 had in the meantime been communicated to him though acted upon by the committee while adjudging him unsuitable for promotion. It has been admitted on behalf of the official respondents that the said adverse remarks were communicated to the petitioner on 20.5.2003 to which he submitted a representation on 23.5.2003 and that the same was rejected on 20.6.2003. Noticeably, the promotion notification of respondent Nos. 5 and 6 was issued on the next date, i.e., 21.6.2003. 33. A fresh process for filling up of one post of Assistant Registrar was initiated on 30.7.2003 and eventually the departmental promotion committee made up of two hon'ble Judges of this Court met on 25.8.2003 to consider the cases of the eligible Superintendents for the purpose. The candidature of the petitioner, Shri Shyamal Bezbaruah and Shri Jadav Ch. Deka and respondent No. 7 was scrutinized. Their ACRs for the period 1998 to 2002 were placed for screening. As the gradings corresponding to the years involved have been already set out hereinabove, the same is not being repeated. It is, however, worth mentioning that the adverse remarks in the ACR of the petitioner for the year 2001 stood retained understandably following the rejection of his representation against the same in the meantime. The committee after a threadbare discussion on the ACRs of the candidates observed that the petitioner had not been graded good during the relevant period besides having earned an adverse remark in the year 2001. Shri Shyamal Bezbaruah was also discarded more or less on the same consideration also noticing that he was under suspension in connection with a departmental proceeding. The committee noticing that Shri Jadav Ch. Deka, respondent No. 7 had been graded as good in 1998, 1999, 2000 and 2002 and that the departmental proceeding initiated against him in 2001 had been dropped without imposing any penalty, recommended him for promotion to the post of Assistant Registrar. The hon'ble the Chief Justice having accepted the recommendation by notification, dated 2.9.2003, the respondent No. 7 was promoted as Assistant Registrar. 34. The hon'ble the Chief Justice having accepted the recommendation by notification, dated 2.9.2003, the respondent No. 7 was promoted as Assistant Registrar. 34. On a scrutiny of the proceedings of the departmental committees held on 17.6.2002, 17.6.2003 and 25.8.2003 held for conducting a comparative assessment of the eligible candidates for promotion to the post of Assistant Registrar there is no scope to hold that the petitioner's case was either left out of consideration or had been rejected on inappropriate or impertinent considerations. True it is that in the meetings held on 17.6.2002 and 17.6.2003, the uncommunicated adverse remarks in his ACR for the year 2001 quoted hereinabove had been noticed and acted upon by the departmental promotion committees while discarding him as unsuitable, the fact remains that his representation against the same was eventually rejected resulting in retention thereof without any moderation. For all practical purposes, therefore, the delay in communication of the said adverse remarks to the petitioner and the delayed consideration of his representation had no decisive bearing on the decision making process of the concerned departmental promotion committees vis-a-vis his suitability for promotion to the post of Assistant Registrar. Having regard to the quality of his performance for the other years as well, it is not possible to conclude that in absence of such adverse remarks as well, on the touchstone of merit his performance could have been rated to be better than the recommended candidates. Thus, the assessment made by the departmental promotion committees even ignoring, the adverse remarks cannot be said to be lacking in objectivity. Having regard to the materials on record in their entirety, I am of the firm opinion that the recommendations of the committees vis-a-vis the petitioner and the decision to promote the respondents 4 to 7 cannot be said to be afflicted a by any error on a fundamental principle of law or procedure. The recommendations and the impugned decisions are neither influenced by extraneous considerations nor had the concerned authorities failed to take note of relevant factors in recording their conclusions this Court in the exercise of its power of judicial review is neither supposed to act, as a court of appeal and embark on a hair splitting exercise to weigh the materials on the golden scales nor is permitted to substitute its view for those of the decision making authorities. As the impugned recommendations and the decisions do not suffer, in my opinion, from any vitiating illegality or irregularity rendering the same to be outrageously in defiance of logic, absurd and preposterous, no interference therewith is called for. 34A. In this context, the decision of the Full Bench of the Bombay High Court in Y.V Thatte (supra), appears to be apposite. There the petitioner's reversion to a lower post was assailed, inter alia, on the ground that it was founded on some uncommunicated adverse remarks. After a detailed survey of various authorities and relying on the ratio of the Apex Court in Union of India v. M.E. Reddy (1980) I LLJ 7 SC, it declined to interfere with the impugned Order on the said ground. It was held that in situations where an action is sought to be impugned being influenced by uncommunicated adverse remarks, it would be within the scope of the jurisdiction of the writ Court to determine whether on the materials placed before it, the action is well supported, bona fide and appropriate. 35. The Apex Court in R.L. Butail (supra), was seized of a situation where the departmental promotion committee for assessing the suitability of eligible candidates for the post of Director (Select Grade) in the Central Water and Power Commission (Power Wing) had taken note of an adverse entry in the ACR of the appellant for a particular year though neither the same was communicated to him nor he could represent against it. Noticing that the representation eventually submitted by the appellant was finally rejected, the Apex Court negatived the plea of injustice being done to the appellant for the above lapses observing that the same did not make any difference in view of the rejection of his representation. 36. The decision of the Apex Court in Gurdial Singh Fijji (supra), which has been heavily relied upon on behalf of the petitioner, to contend that an adverse report in a confidential roll cannot be acted upon to deny promotional opportunities unless it is communicated to the person concerned, has to be construed in the fact situation of that case. Though the above proposition of law is unassailable, the effect of the omission to communicate such remarks has to be judged in the contextual facts. Though the above proposition of law is unassailable, the effect of the omission to communicate such remarks has to be judged in the contextual facts. In the reported decision the integrity certificate was refused to the appellant in view of the uncommunicated adverse remarks for which his name was not empanelled in the select list for induction in the Indian Administrative Service. Further the concerned, authorities had failed to consider his representation against his adverse entries. The facts as obtained in the case in hand are distinctly different. This decision does not advance the case of the petitioner. In the result, the petitioner having failed to make out any case justifying interference with the promotions granted to the private respondents, the petition being without any merit is, therefore, dismissed. No costs. Appeal dismissed