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2008 DIGILAW 730 (GAU)

Nenkar Lailyang v. State of Arunachal Pradesh

2008-09-24

I.A.ANSARI, KETULHOU MERUNO

body2008
JUDGMENT I.A. Ansari, J. 1. The Appellant herein came to this Court with a writ petition, under Article 226 of the Constitution of India, seeking directions to be issued to the Respondents to consider his case for promotion properly to grant him seniority with effect from 22.02.1996, the Petitioner's case being, in brief, thus: The Petitioner has been serving as an Assistant Director of Industries on the strength of the departmental order made on 25.04.1988. According to the relevant Recruitment Rules for promotion from the cadre of Assistant Director of Industries to the cadre of Deputy Director of Industries (in short, "DDI"), an Assistant Director of Industries (in short "ADI") requires 5 (five) years of continuous service in the cadre of Assistant Director of Industries. No Departmental Promotion Committee (in short "DPC") was held after the Petitioner had become eligible for consideration for promotion to the post of DDI and that such a DPC was held only on 14.03.2001. Though the Petitioner's case was sent for consideration to the DPC for promotion to the cadre of DDI, the DPC chose not to recommend the Petitioner's case for promotion. While so declining to recommend the Petitioner's case for promotion, the DPC recommended one Shri S. Tabin for promotion to the post of DDI, though S. Tabin was junior to the Petitioner in the cadre of Assistant Director of Industries. Representations made by the writ Petitioner against his supersession failed to evoke any prompt response from the State Respondents concerned and the Petitioner was, eventually, informed that his case had not been recommended by the DPC due to adverse comments found in his ACRs. The Petitioner's case was, however, once again, considered by the DPC and pursuant to the recommendation made by the DPC for Petitioner's promotion to the cadre of DDI, the Petitioner received his promotion in November, 2002. 2. The State Government resisted the writ petition, their case being, briefly stated, thus: The DPC did not recommend the Petitioner's case for promotion on the ground of not only adverse ACRs, but also on the ground of his case having not been cleared by the vigilance due to pending departmental proceedings. However, after completion of the departmental proceedings, the Petitioner's case was, again, considered by the DPC and, having been recommended for promotion by the DPC, the promotion was granted to the Petitioner with effect from 24.09.2002. 3. However, after completion of the departmental proceedings, the Petitioner's case was, again, considered by the DPC and, having been recommended for promotion by the DPC, the promotion was granted to the Petitioner with effect from 24.09.2002. 3. By judgment and order, dated 09.06.2005, a learned Single Judge of this Court has pointed out that though the Petitioner's grievance is that his case had not been considered at all in respect of the vacancies, which had arisen, in the year 1994, in the cadre of DDI, the fact is that in the year 1994, five posts of DDI had fallen vacant and all the five persons, who had been recommended for promotion by the DPC, were senior to the Petitioner. It was only in the year 1996, according to the learned Single Judge, that the Petitioner's case was considered by the DPC and, having found, on the basis of the Petitioner's ACRs, that the Petitioner was not fit for promotion, the DPC had declined to recommend the Petitioner's case for promotion. On the basis of the findings so reordered by the learned Single Judge, the writ petition was dismissed. Aggrieved by the dismissal of his writ petition, the Petitioner filed a Review Petition being Review Petition No. 30 (AP) 2005, wherein it was contended that the adverse remarks, which were claimed to have been entered in the ACRs of the Petitioners, had not been communicated to him and, hence, the DPC could not have acted upon such adverse remarks and the Petitioner could not have been denied promotion in the year 2001. By order, dated 02.01.2006, the Review Petition was dismissed with the following observations made: ...At the time of hearing the learned Counsel for the Petitioner did not raise any issue regarding non-communication of the adverse remarks, although it was specifically pleaded by the State Respondents in their counter affidavit and no argument was advanced by the Petitioner on the above point. That apa(sic) aforesaid impugned judgment was passed of consideration of other aspect of the matter also. After attaining the case into finality by passing final judgment and order, the aforesaid certificate, in my considered view, it is not permitted to be admitted to upset the impugned judgment, more so, no objection on that count having been raised at the time of hearing. After attaining the case into finality by passing final judgment and order, the aforesaid certificate, in my considered view, it is not permitted to be admitted to upset the impugned judgment, more so, no objection on that count having been raised at the time of hearing. The said certificate cannot be treated as a document/evidence, which the Petitioner could not have found/discovered by due diligence at the time of hearing. I do not find any justifiable ground to review the impugned judgment and order, as prayed for by the Petitioner. Accordingly, the review petition stands rejected. 4. Following the dismissal of his review petition, the Petitioner has, now, preferred this appeal. 5. We have heard Mr. Nani Grayu, learned Counsel for the Appellant, and Ms. G. Deka, learned Addl. Senior Govt. Advocate, appearing on behalf of the State Respondents. None has appeared on behalf of the private Respondents. 6. While considering the Petitioner's grievance that the adverse remarks, in question, had not been communicated to him, it needs to be noted that in Paras 8, 9 and 10 of their affidavit-in-opposition, the State Respondents had averred as follows: 8. That with regard to the allegations made in para-7 of the petition, the deponent states that the Petitioner was not qualified as on 12.04.1991 as already stated in para-6, the promotion case of Petitioner could not be considered along with the others in 1996 due to adverse ACRs of the Petitioner for year 1995-96, 1996-97. The remarks contained in the ACRs of 1995-96 and 1996-97 were also communicated to the Petitioner vide No. IND/CON/98/98-99 dated 18.07.1998 under registered post. Thus, due to adverse ACRs of the Petitioner, the case of promotion of the Petitioner to the post of DDI along with others could not be taken up. A copy of the order dated 18.07.1998 is annexed herewith and marked as ANNEXURE-1. 9. That with regard to the allegations made in para-9 of the petition, the deponent states that the Petitioners claim for promotion to the post of DDI from retrospective effect i.e. with effect from 12.04.1991, does not arise as already stated at para-5 of this affidavit. The Petitioner was informed vide letter No. IND/ESTT/97/88/4564, dated 18.09.2003, that the Ad-hoc promotion of Shri S. Tabin and G. Mali was approved by in 1996 and was regularized by the DPC in 2001. The Petitioner was informed vide letter No. IND/ESTT/97/88/4564, dated 18.09.2003, that the Ad-hoc promotion of Shri S. Tabin and G. Mali was approved by in 1996 and was regularized by the DPC in 2001. However, the case of the Petitioner was not recommended by the DPC held on 14.03.2001 for his promotion due to adverse ACRs and subsequently, the Petitioner was put under departmental proceeding and, therefore, Vigilance clearance could not be obtained. The Copy of the minutes of the DPC held in 2001 is enclosed as ANNEXURE- 'J'. 10. That with regard to the statements made in para-12 of the petition, the deponent states that the case of the Petitioner was processed along with his juniors during February, 1996, and 2001, for promotion to the post of DDI. But the case of the Petitioner has not been recommended for promotion due to his adverse performance as indicated from his ACRs for the period 1995-96 and 1996-97. In addition to that there is also no vigilance clearance by the department as departmental proceeding was pending against him. Thus, discrimination and deprivation his lawful promotion does not arise. Further, as per rule, a person considered unfit for promotion and is superseded by a junior, such persons shall not, if he is subsequently found suitable and promoted, take seniority in the higher grade over the junior persons, who had superseded him. The copy of the ACR for the period 1995-96 and 1996-97 is enclosed herewith and marked as ANNEXURE-K: The copy of the vigilance clearance certificate is enclosed herewith and marked as ANNEXURE-L. 7. From the averments made in Paras 8, 9 and 10 in the said affidavit-in-opposition, what clearly transpires is that according to the State Respondents, the adverse entries, made in the Appellant's ACRs, for the period 1995-96 and 1996-97, were communicated to the Appellant by letter, dated 19.07.1998. The averments, so made in the said affidavit-in-opposition, were not disputed and/or denied by the writ Petitioner by filing any re-joinder. This apart, the judgment and order, dated 09.06.2005, whereby the writ petition was dismissed, gives no indication at all that the appellant, as a writ Petitioner, had contended, at any stage of hearing of the writ petition, that the adverse entries, made in his ACRs, had not been communicated to him. This apart, the judgment and order, dated 09.06.2005, whereby the writ petition was dismissed, gives no indication at all that the appellant, as a writ Petitioner, had contended, at any stage of hearing of the writ petition, that the adverse entries, made in his ACRs, had not been communicated to him. In fact, we have minutely scanned the review petition too and we find that even in the review petition, the Petitioner had not contended that he had disputed or denied, either in writing or orally, when the writ petition was heard, that the adverse entries, made in his ACRs, had not been communicated to him. In the face of these glaringly noticeable facts, we find absolutely no substance, in the grievance of the Petitioner, that adverse entries, made in his ACRs, in question, had not been communicated to him. 8. In the backdrop of the above unavoidably noticeable facts, when we turn to the proceedings of the DPC held on 14.03.2001, we find that the DPC had-taken note of the fact that adverse remarks stood entered in the ACRs of the Petitioner. In these circumstances, the DPC cannot be said to have acted illegally or arbitrarily in not finding the Petitioner fit for being recommended for promotion. The Petitioner's grievance all along, in the writ petition, had been that his case ought to have been considered by the DPC and since the departmental proceeding was pending against him, the DPC ought to have taken resort to the procedure of sealed cover. The present one is not a case, wherein an employee's case can be said to have not been considered at all by the DPC for promotion; rather, the present one is a case, where the DPC, according to the overwhelming materials on record, did consider the Petitioner's case for promotion and, having found the Petitioner-Appellant not suitable for promotion, because of the adverse entries in his ACRs, the Petitioner's case was not recommended for promotion. We find the DPC's decision suffering from no illegality or infirmity. 9. Because of what have been discussed and pointed out above, we find no merit in this appeal. The appeal, therefore, fails and the same shall accordingly stand dismissed. 10. No order as to costs.