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2008 DIGILAW 252 (GAU)

Sapan Kumar Das v. Union of India

2008-04-02

HRISHIKESH ROY

body2008
JUDGMENT Hrishikesh Roy, J. 1. Heard Mr. B. Chakraborty, learned Counsel appearing for the petitioner. Also heard Mr. J. Roy, learned standing counsel who appears for the respondent Hindustan Paper Corporation Limited (HPC Limited). 2. The present petition has been filed making a grievance of denial of promotion to the petitioner to the post of Manager in the promotion exercise carried out in the year 2001. A further grievance of undeserved performance appraisal report as "good" in stead of the expected "very good" made for the year 1999-2000 in respect of the writ petitioner have also been made leading to denial of promotion to him. 3. The respondent HPC Limited declared a Promotion Policy for officers who were stagnating for a long period in a single post whereby under Clause 14 of the Promotion Policy, the following policy decision was notified: 14. Merit Increment and stagnation a) Based on merit position and recommendation of DPC if promotion of a Very Good performer, i.e. consistent performance appraisal rating of 180 or more in any Executive Post for 5 years upto the level of Senior Manager is not possible due to lack of vacancy, the competent authority may consider grant of one merit increment to him to be absorbed against fitment benefit on regular promotion to the next higher post. b) If the promotion stagnation persists for those professionally qualified with outstanding performance upto 5th year or very good performance upto 6th year in the post of Deputy Manager, the incumbent will be considered by the DPC for the next higher post as personal to him. 4. The petitioner was apprised very good for 5 consecutive years starting from 1994-95 till 1998-99. But since very good was needed consecutively for 6 years for getting the stagnation promotion declared by the Promotion Policy noted above, it was necessary for the petitioner to also get very good for his service performance in the 6th year i.e. the year 1999-2000. However, in the year 1999-2000, the petitioner was assessed good by the reporting officer. Thus since the petitioner did not have very good in the 6th year unlike the previous five years, he was denied promotion when the promotion exercises were made in the year 2000 and respondent Nos. 7 to 9 were given promotion to the rank of Manager denying promotion to the writ petitioner who was senior to all the aforesaid 3 respondents. 7 to 9 were given promotion to the rank of Manager denying promotion to the writ petitioner who was senior to all the aforesaid 3 respondents. 5. Mr. B. Chakraborty, learned Counsel appearing for the petitioner submits that performance appraisal of the petitioner for the year 1999-2000 was done by a Reporting Officer under whom the petitioner served only for a period of 4 months 24 days from 1.9.1999 to 22.1.2000 and on the basis of appraisal made by such a Reporting Officer who had limited exposure to the works of the petitioner, his appraisal ought not to have been made the basis for grading the petitioner as good since such grading does not correctly reflect the performance of the petitioner during the year 1999-2000. The learned Counsel further submits that the petitioner in the previous 5 years before 1999-2000 was graded as very good and was conscious of an opportunity for getting the stagnation promotion after getting another very good appraisal by working diligently and if he could have been graded by a Reporting Officer who had the fullest exposure to the performance of the petitioner, the grading of the petitioner would certainly have been very good and not good as has been given. 6. It is also submitted on behalf of the writ petitioner that as per the proforma of performance and appraisal report of officers under the HPC Limited and the mode and method of appraisal indicated in the proforma appraisal system followed by the HPC Limited, the appraisal made by the Reporting officer are required to be reviewed by a Reviewing Officer and only after assessment by the Reviewing officer of the appraisal report made by the Reporting Officer and appropriate correction of appraisal where necessary, a promotion exercise is needed to be undertaken. But in the instant case, the Review appraisal with regard to the performance of the writ petitioner was sought to be carried out only in the month of July, 2001, whereas promotion exercise which led to denial of promotion to the petitioner and giving of promotion to the private respondents were carried out in the year 2000 itself. But in the instant case, the Review appraisal with regard to the performance of the writ petitioner was sought to be carried out only in the month of July, 2001, whereas promotion exercise which led to denial of promotion to the petitioner and giving of promotion to the private respondents were carried out in the year 2000 itself. Accordingly it is contended that if the respondent HPC Limited would have carried out the Review discussion of the Reporting Officer's appraisal, the petitioner perhaps would have been assessed as very good and he would not have been denied promotion, as he had very good in all 5 previous years prior to 1999-2000. 7. Mr. J. Roy, learned Counsel appearing for the respondent HPC Limited submits that during the year 1999-2000, there were several changes of Supervising Officers of the petitioner. As for instance the Reporting officer from April, 1999 to August, 1999 went on voluntary retirement. The next officer supervised the works of the petitioner from 1.9.1999 to 22.1.2000. The final assessment was made by a third Reporting officer, who appraised the performance of the petitioner from January, 2000 to 31.3.2000. It is also contended by the counsel that the Reporting Officer for the period 1.9.1999 to 22.1.2000 had more than 4 months exposure to the works of the petitioner. He submits that as per the norms followed in the HPC Limited, the appraisal made with regard to the writ petitioner by such Reporting Officer who had exposure to over 4 months of the petitioner's performance, can be accepted and appraisal made by such Reporting Officer cannot be rejected only on the ground that the Reporting Officer did not have exposure to works of the petitioner for all the 12 months of the year (1999-2000) of appraisal.... 8. It is also submitted on behalf of the respondent HPC Limited that a Review discussion was sought to be made with regard to the appraisal report of the petitioner, but during the Review discussion exercise carried out on 3.7.2001, the petitioner refused to put his signature to the Review discussion minutes and as such he has no right to claim any relief with regard to the appraisal whereby he has been assessed as good for the year 1999-2000. 9. It is further submitted by Mr. 9. It is further submitted by Mr. J. Roy that assessment of good is not an adverse assessment and there is no need to communicate such appraisal to the concerned employee. 10. Responding to the counter arguments made on behalf of the HPC Limited, Mr. B. Chakraborty, learned Counsel for the petitioner refers to the Apex Court's decision reported in [1996] 1 SCR 1118 in the case of U.P. Jal Nigam and Ors. v. Prabhat Chandra Jain and Ors. wherein the Supreme Court was examining the down gradation of the respondent employee to 'satisfactory' which appraisal not being adverse was not compulsorily communicable to the effected employee. In U.P. Jal Nigam (supra), the Supreme Court held that reason for down gradation must be recorded in the personal file and employee concerned must be informed of the change in the form of advise of an appraisal, which may not strictly be adverse and not compulsorily communicable. 11. It is also seen in the present case that there has been a change of promotion policy followed by the HPC Limited and as per the changed promotion policy, declared and accepted on 28.9.2005, the petitioner has since been promoted to the cadre of Manager with effect from 30.6.2007. But the claim in the instant case is for promotion of the petitioner with effect from the year 2000 when the juniors to the petitioner were promoted because of appraisal grading of the petitioner as good instead of very good for the year 1999-2000. 12. I find that there are various stages of appraisal of the performance of employees and as per the notified policy and the format of performance appraisal; the appraisal made by the Reporting Officer is required to be reviewed by the Reviewing Officer. The appraisal format is also required to be completed every year before 30th April for the year in question. Thus only after a review, the appraisal made can be used for purpose of promotion. In the instant case, the respondent HPC Limited may perhaps be justified in relying on the appraisal made by the Reporting Officer, under whom the petitioner worked only for a period of 4 months and 24 days without being exposed to the works of the petitioner for the entire 12 months of the concerned year. In the instant case, the respondent HPC Limited may perhaps be justified in relying on the appraisal made by the Reporting Officer, under whom the petitioner worked only for a period of 4 months and 24 days without being exposed to the works of the petitioner for the entire 12 months of the concerned year. But the said appraisal was not thereafter subjected to Review discussion before the impugned promotion exercise carried out in the year 2000. In fact, a Review discussion was attempted only on 3.7.2001 after the petitioner submitted representations requesting for a review of appraisal made by the Reporting Officer. 13. If a Review discussion on the appraisal of a Reporting Officer with regard to an employee is necessary to be made, obviously such assessment ought to be made before the promotion exercise is carried out and not after the promotion is considered on the basis of Reporting Officer's appraisal without subjecting such appraisal to a Review discussion. 14. In the instant case, the Review discussion was attempted to be made only after the promotion was considered and made. This obviously has resulted in injustice to the petitioner. During the review discussion, there could have been an upward review of the appraisal made by the Reporting Officer to very good in which case, the petitioner would have been entitled to be given promotion as per the promotion policy in force since in the previous 5 years prior to the year 1999-2000, the writ petitioner was continuously assessed as very good. 15. It is further seen that assessment of good by itself is not adverse and such appraisal may not require any communication. But in the facts of the instant case, the assessment of good has led to denial of promotion to the writ petitioner and the petitioner has suffered adverse consequences because of appraisal as good in the 6th year (1999-2000). Having regard to the previous 5 years appraisal as very good, the respondent authorities ought to have permitted a Review discussion on the assessment of good made by the Reporting Officer and if the assessment of good was found to be justified, should have informed the petitioner of such assessment since he was adversely affected and promotion was denied to him by such assessment. 16. 16. In view of above, this writ petition is disposed of by directing the respondent HPC Limited to have a Review discussion on the appraisal of good made by the Reporting Officer with regard to the performance of the writ petitioner for the year 1999-2000. If such process of Review discussion leads to up gradation of the appraisal from good to very good for the year 1999-2000, the petitioner in such event would be entitled to the benefit of promotion given to his colleagues i.e. respondent Nos. 7 to 9, who were juniors to the petitioner and who were given promotion to the post of Manager because they fulfilled the promotion criteria laid down by the HPC Limited as per Clause 14(a) and 14(b) of the Promotion Policy. 17. Since the petitioner has now been given promotion to the cadre of Manager with effect from 1.7.2007, in the event of a positive Review assessment in favour of the writ petitioner in the year 1999-2000, the promotion subsequently given in July, 2007 to the writ petitioner should relate back retrospectively to the date, when the respondent Nos. 7 to 9 have been given such promotion. Ordered accordingly. This writ petition stands allowed as above. No cost. Petition allowed