Research › Search › Judgment

Gauhati High Court · body

2006 DIGILAW 628 (GAU)

Huidrom Ranjit Singh v. State of Manipur and Ors.

2006-07-10

M.B.K.SINGH

body2006
Heard Mr. H.S. Paonam, learned counsel appearing on behalf of the petitioner and Mr. A. Jagatchandra, learned Government Advocate appearing on behalf of the respondents. I have also perused the proceedings of the Review Departmental Promotion Committee held on 10.8.2001 in connection with initial absorption of Dr. H. Ranjit Singh to M.H.S. Grade-IV. 2. Upon hearing the parties through their respective counsel and on perusal of the materials before the Court, following facts are ascertained; The petitioner and some others were appointed to the post of Assistant Surgeon Grade-I in the Medical Department in 1979 on the basis of recommendation made by the MPSC in respect of the said posts. The petitioner's name was at Sl.No.5 of the Merit List of the recommended candidates. In the year 1988, on the basis of recommendation made by the MPSC, 7 persons including the petitioner were appointed as Junior Specialist (Grade-IV) of the Manipur Health Service vide order dated 28.5.88. By an order dated 15.1.92, the Governor of Manipur was pleased to relax any fraction of year in qualifying length of service/length of speciality prescribed for Doctors for absorption in M.H.S. at the time of initial constitution of service under Rule 6 of the Health Service Rules,1982. In purported application of the aforesaid amended Rules, about 30 Doctors were absorbed in M.H.S. Grade-IV w.e.f. 16.2.84 vide order dated 13.7.95. Some of the said Doctors were below the petitioner in the said merit list of 1979 and as such they were junior to him but now the position has been changed. One of the similarly situated Doctors, namely, Y. Ibetombi Devi, who was initially appointed with the petitioner in 1979 as Assistant Surgeon Grade I and then a Junior Specialist in 1988, purportedly having been aggrieved by failure on the part of the authority concerned to extend benefit of initial absorption to M.H.S. Grade- IV w.e.f. 16.2.84, filed C.R. No.620 of 1997 praying for directing the respondents to absorb her in M.H.S. Grade-IV w.e.f. 16.2.84. This Court vide judgment and order dated 1.4.99, allowed the petition directing the authority concerned to afford the benefit of initial absorption of Dr. Y. Ibetombi Devi to M.H.S. Grade-IV w.e.f. 16.2.84. The State Government issued necessary order of placement in favour of the said Y. Ibetombi Devi in compliance with the order of this Court. This Court vide judgment and order dated 1.4.99, allowed the petition directing the authority concerned to afford the benefit of initial absorption of Dr. Y. Ibetombi Devi to M.H.S. Grade-IV w.e.f. 16.2.84. The State Government issued necessary order of placement in favour of the said Y. Ibetombi Devi in compliance with the order of this Court. Thereafter, the petitioner preferred W.P.(C) No.197 of 2000 before this Court praying for direction to the respondents to consider his case for absorption into M.H.S. Grade-IV w.e.f. 16.2.84 in terms of Rule 6 of M.H.S. Rules,1982 by extending the same benefit of the judgment and order dated 1.4.99 passed in C.R.No.620 of 1997. This Court disposed of the said W.P(C) No.197 of 2000 on 31.8.2000 in terms of the following orders: “ The counsel for the respondents has placed on record a letter from the Joint Secretary to the Government of Manipur, wherein it has been stated that the Government would consider the absorption of the petitioner to M.H.S. Grade-IV w.e.f. 16.2.84. In view of the letter, the present petition has become infructuous. However, the petitioner would be entitled to approach this Court again, if he is not given ultimate relief. With this observation, this writ petition is disposed of. The above process shall be done at the earliest and if possible, within a period of 2 months.” 3. Then on 10.8.01, a Review Departmental Promotion Committee in connection with absorption of the petitioner to M.H.S. Grade-IV w.e.f. 16.2.84 was held and he was found eligible for initial absorption in M.H.S. Grade-IV (non specialist) w.e.f.16.2.84 under Rule 6 of M.H.S. Rules,1982 read with DP's order No.1/51/83-MHS(Pt-I) dated 15.1.92. No departmental enquiry was pending against the petitioner. However, after examining the ACRs, Integrity Certificates and Assessment of the over all gradings, the Committee did not recommend the petitioner for placement to MHS Grade IV w.e.f. 16.2.84. 4. It is the case of the petitioner that he was never communicated in respect of any adverse entry in his ACRs for the period from 1978 to 1981 and as such if there were adverse entries in the said ACRs, the said adverse entries, which were never communicated to him, should not have been taken into account at the time of the said consideration for his absorption to M.H.S. Grade -IV w.e.f. 16.2.84. In this writ petition, the petitioner is praying mainly, in effect, for directing the respondents to implement the assurance given before this Court in W.P(C) No.197 of 2000 regarding his absorption to M.H.S. Grade IV w.e.f. 16.2.84 by disregarding all non-communicated adverse entries found in his ACRs at the time of consideration of the said absorption. 5. Mr. Paonam, learned counsel appearing on behalf of the petitioner refers to three decisions of the Apex Court - Baikuntha Nath Das and Anr. -Vs- Chief District Medical Officer, Baripada and Anr. (1992) 2 SCC 299 ; N.Rajarathinam Vs- State of Tamil Nadu & Anr. (1996) 10 SCC 371 and Badarinath -Vs- Govt. of Tamil Nadu & Anr. (2000)8 SCC 395 in support of the petitioner's case. 6. It is well settled that every officer has a right to be considered for promotion under Art. 16 to a higher post subject to eligibility provided he is within the zone of consideration. But the question is as to the manner in which his case is to be considered. In this connection, the Apex Court in Badarinath (supra), after referring to its earlier decision held at Para 58: “58. From the above judgments, the following principles can be summarized: (1) under Art.16 of the Constitution, right to be “considered” for promotion is a fundamental right. It is not the mere “consideration” for promotion that is important but the “consideration” must be “fair” according to established principles governing service jurisprudence. (2) Courts will not interfere with assessment made by Departmental Promotion Committees unless the aggrieved officer establishes that the non-promotion was bad according to Wednesbury principles or it was mala fides. (3) Adverse remarks of an officer for the entire period of service can be taken into consideration while promoting an officer or while passing an order of compulsory retirement. But the weight which must be attached to the adverse remarks depends upon certain sound principles of fairness. (4) If the adverse remarks relate to a distant past and relate to remarks such as his not putting his maximum effort or so on, then those remarks cannot be given weight after a long distance of time, particularly if there are no such remarks during the period before his promotion. This is the position even in cases of compulsory retirement. This is the position even in cases of compulsory retirement. (5) If the adverse remarks relate to a period prior to an earlier promotion they must be treated as having lost their sting and as weak material, subject however to the rider that if they related to dishonesty or lack of integrity they can be considered to have not lost their strength fully so as to be ignored altogether. (6) Uncommunicated adverse remarks could be relief upon even if no opportunity was given to represent against them before an order of compulsory retirement is passed.” 7. Keeping in view the above mentioned principles, it is necessary to consider whether Review Departmental Promotion Committee meeting held on 10.8.01 in connection with initial absorption of the petitioner to M.H.S. Grade-IV w.e.f. 16.2.84 applied the correct legal principles of fairness. By applying Wednesbury rule, it is necessary to consider whether relevant facts were not considered and irrelevant facts were considered. 8. In the present case, the said Review Departmental Promotion Committee found the petitioner eligible for placement in M.H.S. Grade-IV under the relevant rules. But the said DPC did not recommend the petitioner for the said placement w.e.f. 16.2.84 purportedly after examining the ACRs and Integrity Certificate etc. There was no departmental proceeding pending against the petitioner at the relevant time. No adverse entry is found regarding his integrity, his professional ability and quality of work, his relationship with colleagues, his ability of control and management of staff, his state of health, his temperament and his knowledge of rules, regulations and procedures etc. in the relevant ACRs of the petitioner. It is also ascertained that the overall assessment of performance and qualities of the petitioner made by the Reviewing Officer in all the relevant ACRs of the petitioner was “Good.” However, in all the said ACRs of the petitioner, the Reviewing Officer is found to have made adverse entries to the effect that the petitioner was not yet fit for promotion at the said time. Apart from the above said adverse entries made by the Reviewing Officer ( Director of Medical, Health & FW Service Manipur), there is no any adverse entry against the petitioner in all the ACRs placed before the said Review DPC. Apart from the above said adverse entries made by the Reviewing Officer ( Director of Medical, Health & FW Service Manipur), there is no any adverse entry against the petitioner in all the ACRs placed before the said Review DPC. No reason is found to have been given by the Reviewing Officer in any of the said ACRs as to why the petitioner was not yet fit for promotion. There is also nothing to show that the petitioner was communicated about the said adverse entries in his ACRs at any point of time. In the absence of any denial from the side of the respondents, I do not find any reasonable ground as to why the petitioner's case that he was never communicated about his adverse entries in his ACRs should not be believed and as such it is believed. 9. In my opinion it was not fair and just on the part of the review DPC not to recommend the petitioner for absorption to M.H.S. Grade-IV w.e.f. 16.2.84 merely on the basis of the said adverse entries. There is no appreciable reason as to how the said adverse entries were relevant at the time of consideration for absorption of the petitioner to M.H.S. Grade-IV w.e.f. 16.2.84. Even if we consider that the said absorption would have amounted to promotion to a higher grade, those non-communicated adverse entries should not have been taken into account. 10. In Gurdial Singh Fijji Vs- State of Punjab, AIR 1979 SC 1622 it was held that unless an adverse report is communicated and representation, if any, made by the employee is considered, it may not be acted upon to deny the promotion. At Para 17 of the judgment, the Supreme Court observed: “17. The principle 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. 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. Unfortunately, for one reason or another, not arising out of any fault on the part of the appellant though the adverse report was communicated to him, the Govt. has not been able to consider his explanation and decide whether the report was justified. In these circumstances, it is difficult to support the non issuance of the integrity certificate to the appellant. The chain of reaction began with the adverse report and the infirmity in the link of causation is that no one has yet decided whether that report was justified. We cannot speculate, in the absence of a proper pleading, whether the appellant was not found suitable otherwise, that is to say, for reasons other than those connected with the non issuance of an integrity certificate to him.” Same view was taken in Amar Kant Choudhury - Vs- State of Bihar, 1994 (I) SCC 694. 11. It is also seen that the reviewing officer did not disclose any reason or basis for assessing the petitioner as not yet fit for promotion in the said ACRs when his overall assessment of performance and qualities of the petitioner was recorded as 'Good.' Such a view of the Reviewing officer without disclosing the basis for having the said view is arbitrary or mala fide in nature and as such not reasonable. It is well settled that the object of making adverse remarks is to assess the competence of an officer on merit and performance of an officer concerned so as to grade him in various categories as Outstanding, Very Good, Good, Satisfactory and Average etc. The competent authority and the reviewing authority have to act fairly or objectively in assessing the character, integrity and performance of the incumbent. (M.A. Rajsekhar -Vs- State of Karnataka, 1996). In our present case, despite assessing the petitioner's overall performance and qualities as “Good”, despite having no adverse entries in respect of the petitioner's integrity and other relevant facts, the reviewing officer arbitrarily made the said adverse entries. In my opinion, the reviewing officer failed to act fairly or objectively by assessing the petitioner as not yet fit for promotion in the facts and circumstances. 12. In my opinion, the reviewing officer failed to act fairly or objectively by assessing the petitioner as not yet fit for promotion in the facts and circumstances. 12. Accordingly, the said decision of the review DPC not to recommend the petitioner for absorption to M.H.S. Grade-IV w.e.f. 16.2.84 on the basis of the said noncommunication and arbitrary adverse entries cannot be considered as one having been made fairly and reasonably in accordance with law. 13. Right to be considered for promotion is a fundamental right and such a consideration must be fair consideration according to established principles of Service Jurisprudence. The same principle is to be followed in respect of the said absorption to M.H.S. Grade-IV. In the present case, for reasons already noted, there has not been fair consideration of the petitioner's case for absorption to M.H.S. Grade-IV w.e.f. 16.2.84 according to established principles of Service Jurisprudence. 14. In the result, this writ petition is disposed of with the direction that a review of the said review DPC held on 10.8.2001 with reference to MPSC File No.8-A/66/01-MPSC(P):Govt's. Reference No.5/86/2000: dated 26.8.2000, shall be held within three months from today in connection with initial absorption of Dr. H. Ranjit Singh (petitioner) to MHS Grade-IV in the Medical & Health Department, Govt. of Manipur w.e.f. 16.2.84. The said uncommunicated adverse entries made by the reviewing officer regarding the petitioner being not fit for promotion without disclosing reason or basis for the said entries are not to be taken into account as against the petitioner. The respondents are directed to take necessary steps so that the said review of the Review DPC is held as directed and that consequential follow up action is taken up in accordance with law. 15. Mr. A. Jagatchandra, learned G.A. brings to this Court's notice that the Govt. has already written a letter being No.5/86/2000-M dated 24.6.05 to the Secretary, MPSC requesting for taking necessary steps to review the proceedings of the said review DPC meeting held on 10.8.01 in connection with initial absorption of Dr. H. Ranjit Singh (petitioner) to MHS Grade-IV w.e.f. 16.2.84. In view of the direction already given by this Court, the Secretary, MPSC will have to take necessary steps for holding the required review DPC as expeditiously as possible which is to be within a period of three months from today. H. Ranjit Singh (petitioner) to MHS Grade-IV w.e.f. 16.2.84. In view of the direction already given by this Court, the Secretary, MPSC will have to take necessary steps for holding the required review DPC as expeditiously as possible which is to be within a period of three months from today. The Government respondents are to inform the Secretary, MPSC immediately so as to take up necessary steps expeditiously. 16. With the above observation, direction and order, this writ petition stands disposed of.