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2009 DIGILAW 815 (GAU)

Michi Tara v. State of Arunachal Pradesh

2009-11-18

I.A.ANSARI

body2009
JUDGMENT I.A. Ansari, J. 1. While the writ petitioner and the respondent Nos. 4 and 5 herein were serving as Executive Engineer, in the Department of Power, Government of Arunachal Pradesh, a meeting of the Departmental Promotion Committee (in short, 'the DPC) took place, on 30.1.2008, for consideration of promotion of Executive Engineer(s) to the posts of Superintending Engineer. In this meeting, the cases of not only the writ petitioner but also of respondent Nos. 4 and 5 were considered. Under the relevant recruitment rules, five years of regular service, in the grade of Executive Engineer, is a pre-condition for making an Executive Engineer eligible for promotion to the post of Superintending Engineer. There is no dispute that on the date, when the meeting of the DPC was held, the writ petitioner as well as the said two private respondents were eligible for consideration for promotion to the post(s) of Superintending Engineer, both the private respondents, namely, respondent Nos. 4 and 5 being, however, junior to the writ petitioner. Under the relevant recruitment rules, the post of Superintendent Engineer is a promotional post and the selection for promotion is based on the criterion of merit-cum-seniority. The petitioner's grievance is that the petitioner was superseded on the ground that the petitioner had adverse remarks in his ACRs (Annual Confidential Report), the remarks being to the effect that the petitioner was unfit for promotion, but the remarks were not communicated to the petitioner until after the DPC held its said meeting and recommended the names of the said two private respondents, namely, respondent No. 4 and 5, for promotion to the posts of Superintending Engineer. 2. Aggrieved by his supersession, the petitioner came with the present writ petition, made under Article 226 of the Constitution of India, seeking to get, inter alia, the proceedings of the said DPC, dated 30.1.2008, set aside and quashed, his grievance being thus : The adverse remarks, in his ACRs, which had become the basis of his supersession, had not been communicated to him till the DPC met on 30.1.2008 and that the adverse remarks were communicated to him as late as on 10.2.2008. The petitioner's pleaded case, in short, is that the petitioner had been informed about the adverse entries, in his ACRs only on 10.2.2008 and, hence, the DPC, which was held without communicating to the petitioner the adverse remarks, in his ACRs, was wholly illegal inasmuch as he did not get any opportunity of showing cause against the correctness, justifiability, and/or legality of the entries, which came to adversely affect his service career. 3. The State respondents have resisted the writ petitioner by filing their affidavit-in-opposition, wherein the respondents have averred that the adverse entries were communicated to the petitioner on 28.1.2008. In support of the averments, the respondents have also annexed, to their affidavit-in-opposition, an endorsement, made by the Superintending Engineer concerned, to the effect that the communication, as regard the adverse entries, had been made to the petitioner on 28.1.2008. 4. Before proceeding further, it is apposite to take note of the said adverse remarks and also the Memoranda, whereby the adverse remarks were communicated to the petitioner. There are, according to the State respondents, two entries, bearing adverse remarks, in the ACRs of the present petitioner. These two adverse entries were communicated to the petitioner by two Memoranda, both dated 25.1.2008. The relevant portions of the Memoranda read under: 1. While assessing the performance of Shri Michi Tara, Executive Engineer (Elect.), Deptt. of Power, Arunachal Pradesh, the following remarks of advisory nature has been recorded in his ACR for the period from 1.4.2004 to 31.3.2005. 'He is a very lazy officer' 'He is graded as 'fair' 'Not yet fit for promotion 2. "While assessing the performance of Shri Michi Tara, Executive Engineer (Elect.) Deptt. of Power, Arunachal Pradesh, the following remark of advisory nature has been recorded in this ACR for the period from 31.10.2005 to 31.3.2006. 'He needs improvement 5. Against the two adverse entries, so communicated, the petitioner made representations, on 18.2.2008, for review and rectification of the adverse entries. In fact, the petitioner has also issued a reminder, on 7.3.2008, to this representations, dated 18.2.2008. 6. On 15.5.2008, an interim order was passed, in this writ petition, directing the State respondents to keep in abeyance, pending return of notice, the recommendations, made by the DPC, on 30.1.2008, for promotion to the post of Superintending Engineer (Electrical). 7. In fact, the petitioner has also issued a reminder, on 7.3.2008, to this representations, dated 18.2.2008. 6. On 15.5.2008, an interim order was passed, in this writ petition, directing the State respondents to keep in abeyance, pending return of notice, the recommendations, made by the DPC, on 30.1.2008, for promotion to the post of Superintending Engineer (Electrical). 7. Before, however, the interim order was passed on 15.5.2008, respondent No. 4, acting upon the recommendations made by the DPC, already stood promoted. As far as the respondent No. 5 is concerned, he was also acting upon the said recommendations made by the DPC, was, by order, dated 22.2.2008, granted ad-hoc promotion against a deputation vacancy. This promotion was regularised by an order, dated 26.3.2009. Thus, the recommendations of the DPC, as regard respondent No. 4 as well as respondent No. 5, were acted upon before the present writ petition was filed, though the promotion accorded to the respondent No. 4 was regular, while the promotion granted to the respondent No. 5 was, initially, ad-hoc and subsequently regularised as stated hereinbefore. By order, dated 11.9.2009, however, the regular promotion, which had been granted to respondent No. 5, has been kept in abeyance by the State Government. It is worth pointing out that the order, dated 11.9.2009, aforementioned, regularising promotion of respondent No. 5, stands impugned by the respondent No. 5 herein in another writ petition, which has given rise to WP(C) No. 430/2009. 8. As far as the respondent No. 6 is concerned, he was not, originally, a party to the present writ petition; he has been made a party to the writ petition on the ground that he has been appointed as a Superintendent Engineer, on officiating basis, by order, dated 27.2.2009. Thus, the order, dated 27.2.2009, aforementioned also stands impugned in this writ petition. It, however, deserves mention that the officiating appointment of the respondent No. 6 has been granted without any prejudice to the rights, if any, of the petitioner in this writ petition. This apart, the case of the respondent No. 6 had not been considered by the DPC, held on 30.1.2008, and his promotion, though officiating, has been granted without clearance from the DPC. 9. In the backdrop of the facts, as narrated above, I am, now, required to consider as to what relief(s), if any, the petitioner is entitled to. 10. I have heard Mr. 9. In the backdrop of the facts, as narrated above, I am, now, required to consider as to what relief(s), if any, the petitioner is entitled to. 10. I have heard Mr. A. Tangu, learned Counsel for the petitioner, and Mr. R.H. Nabam, learned Senior Government Advocate, appearing on behalf of respondent Nos. 1, 2 and 3.I have also heard Mr. K. Ete, learned Counsel for the respondent No. 5, and Mr. S. Tapin, learned Counsel for respondent No. 6. None has appeared on behalf of respondent No. 4. 11. While considering the present writ petition, it needs to be pointed out that this writ petition rests on the allegation that the adverse entries, in the ACRs of the present petitioner, had not been communicated to the petitioner before the DPC came to consider the cases of the petitioner and of the private respondent Nos. 4 and 5 for the purpose of determining if they were suitable for promotion to the post(s) of Superintending Engineer (Electrical). 12. It is the categorical assertion of the petitioner, at paragraph 6 of his writ petition, that the adverse entries, in his ACRs, had been communicated to him by the two Memoranda, dated 25.1.2008, aforementioned, as late as on 10.2.2008. Resisting the writ petition, as indicated hereinabove, the State respondents have averred in their affidavit-in-opposition that the adverse remarks, in the ACRs of the petitioner, had been communicated to the petitioner on 28.1.2008. It is clear, from the averments of the State respondents, that the State respondents asserts that the petitioner had been informed about the adverse remarks before the meeting of the DPC was held on 30.1.2008. To such categorical assertion, made by the State respondents in their affidavit, which they had sought to support with the help of the document annexed thereto, the writ petitioner did not react at all. There was no reply filed by the petitioner disputing or denying this factual assertion. Ordinarily, when the averments, made by the State respondents, are supported by a document placed on record and not disputed by the petitioner by filing any re-joinder, the inference would be that the communications were made, as asserted by the State respondents, on 28.1.2008. Whether the communications, so made, as late as on 28.1.2008, gave the petitioner an adequate or reasonable opportunity of having his say, against the adverse remarks, is, altogether, a different question. 13. Whether the communications, so made, as late as on 28.1.2008, gave the petitioner an adequate or reasonable opportunity of having his say, against the adverse remarks, is, altogether, a different question. 13. At the time of hearing of this writ petition, it has, however, been submitted, on behalf of the petitioner, that the petitioner had received the communication, as regard the adverse entries, in his ACRs, on 28.1.2008 and that the communications were received by him on 10.2.2008. In support of his plea that he had received the communication on 10.2.2008 and not on 28.1.2008, the petitioner has, however, not produced any supporting material before this Court. This apart, at no point of time, before this writ petition was filed, the petitioner had made any communication to the respondents/authorities concerned to the effect that he had not received the Memoranda, dated 25.1.2008, aforementioned before 10.2.2008 or before the meeting of the DPC had been held. In fact, even in the representations, made by the petitioner, on 18.2.2008, against the adverse entries in his ACRs, the petitioner made no assertion that adverse entries were communicated to him as late as on 10.2.2008. Even if we do not reject the petitioner's contention as false that it was on 10.2.2008 that he had received the communication as regard the adverse entries, it would remain as a disputed question of fact and this Court, in a writ proceeding of the present nature, would not hold any enquiry into the correctness of such disputed question of fact. 14. Coupled with the above, it is also worth pointing out that it is not the case of the petitioner that before the meeting of the DPC was held, he had not been given sufficient time or reasonable opportunity of making representation, against the adverse entries, in his ACRs. The petitioner cannot, therefore, make out a new case that though he had received, or assumed to have received, the Memoranda, dated 25.1.2008, on 28.2.2008, he did not get adequate time to make his representation. It is one thing to say that a person has been superseded without communicating to him the adverse remarks entered into his ACRs, and it is quite another to say that though the adverse entries were communicated to a person, the person was not given reasonable time and opportunity to make representation against the adverse remarks. 15. It is one thing to say that a person has been superseded without communicating to him the adverse remarks entered into his ACRs, and it is quite another to say that though the adverse entries were communicated to a person, the person was not given reasonable time and opportunity to make representation against the adverse remarks. 15. The requirement of communicating adverse entry, in the service record of an employee, is not a mere official formality. The duty to communicate, to the concerned employee, the remark(s), which may have adverse bearing on his service career, is one of the basic requirements of service jurisprudence. This requirement is based on the principle of natural justice. Interest of justice demands that none be condemned without being given reasonable opportunity of being heard. It is this classic principle of natural justice, which forms the basis of the invariable principle that no adverse entry, into the service record of an employee, be considered against him for determining his suitability for promotion, or for giving any other service benefit(s), without giving him a reasonable opportunity to have his say against the adverse entry. In certain circumstances, even an entry, which may not be, ordinarily, adverse, may, nevertheless, become adverse and impair the promotional prospects and other service benefits of an employee. For instance, grant of a 'good' entry, in a given case, may still prove to be adverse to the interest of a government employee if the benchmark for promotion is 'very good.' In such circumstances, even a 'good' entry requires communication to the concerned employee before his interest is allowed to be adversely affected by such an entry. In fact, in the case of Dev Dutt v. Union of India reported in (2008) 8 SCC 725 , which Mr. A. Tangu, learned Counsel for the petitioner, has relied upon, the Apex Court has laid down that every entry (and not merely poor or adverse entry) relating to an employee, under the State or an instrumentality of the State, must be communicated to the employee within a reasonable period of time and it makes no difference whether there is a benchmark for promotion or not, for, even if there is no benchmark, non-communication of an entry may adversely affect an employee's chances of promotion. When merit is considered as the criterion for promotion, a person, having 'good' or 'average' or 'fair' entry, would certainly have less chances of being selected than a person having a 'very good' or 'outstanding' entry. Viewed thus, necessary it is that every entry, particularly, such an entry, which may have adverse bearing on the future career of an employee, be communicated to him. 16. In the present case, the adverse remarks, in the ACRs of the petitioner, were communicated to the petitioner as late as on 28.1.2008 and the DPC was held on 30.1.2008. The petitioner cannot, therefore, be said to have received any reasonable opportunity of having his say against the adverse remarks. It has, however, not been the case of the petitioner that he did not get reasonable opportunity of showing cause against the adverse remarks'. Situated thus, the possibility that the petitioner, at one stage, had decided not to make any representation, against the adverse remarks, cannot be boldly ruled out. Extended logically, the possibility exists that he has decided to make representation against the adverse remarks as an after-thought. Unless, therefore, the petitioner shows otherwise, the possibility, that the petitioner momentarily chose to acquiesce to adverse remarks, cannot be totally ruled out. 17. Be that as it may, when it has not been the petitioner's case that he did not get reasonable opportunity to make representations, against the adverse remarks, before the meeting of the DPC was held, this Court is of the view that the proceedings of the DPC, recommending the cases of respondent Nos. 4 and 5 for promotion to the post of Superintending Engineer (Electrical), do not warrant interference by this Court at this stage. The fact, however, remains that when the petitioner has made representations against the adverse entries, his representations, dated 28.2.2008, need to be considered by appropriate authorities. Depending upon the decision(s), which may be taken by the authorities concerned, on the representations, dated 28.2.2008, aforementioned, further actions are required to be taken, in the matter, by the State respondents. It is, therefore, clear that if the representations, made by the petitioner, are decided in his favour, his case for promotion has to be reconsidered by the DPC treating the adverse remarks, entered in the petitioner's ACRs, to have never existed. It is, therefore, clear that if the representations, made by the petitioner, are decided in his favour, his case for promotion has to be reconsidered by the DPC treating the adverse remarks, entered in the petitioner's ACRs, to have never existed. This would, obviously, necessitate reconsideration and review of the recommendations, dated 30.1.2008, made by the DPC and, in such a process of reconsideration and review, the cases of not only the petitioner but also of respondent Nos. 4 and 5 would be required to be reconsidered and reviewed. On such reconsideration and review, whatever decision is arrived at by the DPC, such decision shall govern the question of promotion of the petitioner and of the respondent Nos. 4 and 5. 18. Turning to the case of the respondent No. 6, it may be noted that he has been promoted on officiating basis with effect from 27.2.2009. This officiating promotion has nothing to do with the impugned proceeding of the DPC. The officiating promotion may have a bearing on the petitioner's service and, to this extent, the petitioner may have an interest in challenging the officiating promotion of the respondent No. 6. As the cause of action, in the present writ petition, is not only distinct from, but wholly independent of, the cause of action, which arises out of the officiating promotional appointment of the respondent No. 6, made on 27.2.2009, the petitioner cannot, in this writ petition, seek any relief against the officiating promotional appointment of respondent No. 6. This does not, however, mean that the petitioner cannot impugn the officiating promotional appointment of the respondent No. 6 by way of a writ petition. The remedy of the petitioner, therefore, lies in impugning the officiating promotional appointment of the respondent No. 6 in an independent and separate writ proceeding inasmuch as any attempt to determine the legality and correctness of the officiating promotional appointment of the respondent No. 6, in the present writ petition, would suffer from misjoinder of causes of action. Realising this reality, the petitioner has, now, sought to withdraw the prayer for relief, which he has sought for against the respondent No. 6, with liberty to approach this Court with appropriate application, in future, for such relief(s), in the matter, as he may be entitled to. 20. Because of what have been discussed and pointed out above, this writ petition partly succeeds. 20. Because of what have been discussed and pointed out above, this writ petition partly succeeds. While the regular promotions of respondent Nos. 4 and 5 are hereby not interfered with at this stage, the respondents/authorities concerned are hereby directed to consider the petitioner's two representations, dated 18.2.2008, aforementioned and dispose of the same in accordance with law. The petitioner's representations shall, upon such consideration, as directed hereinbefore, be disposed of within a period of six weeks from the date of communication of this order to respondent No. 2, namely, Secretary (Power), Government of Arunachal Pradesh, Itanagar. If both or any of representations of the petitioner succeeds, the DPC shall be convened for review and reconsideration of the cases of the petitioner as well as of respondent Nos. 4 and 5 for the purpose of deciding the question of their promotion to the post(s) of Superintending Engineer (Electrical). If the petitioner's any of the representations is allowed, the DPC shall be convened within a period of three weeks from the date of disposal of the representation. While carrying out such exercise of reconsideration and review of their earlier recommendations, the DPC shall treat the expunged adverse remark or remarks, as may be, made in the petitioner's ACRs, as non-existent. The outcome of the DPC meeting shall govern the future course of action in the matter of promotion of the petitioner and also of the respondent Nos. 4 and 5. If the petitioner is recommended for promotion, he shall be treated as senior to the respondent Nos. 4 and 5, in the grade of Superintending Engineer, and his promotion shall be given effect from the date on which promotion of respondent Nos. 4 and 5 had been given effect to. As regards the relief, which the petitioner has claimed against respondent No. 6, no order is being passed in respect of the petitioner's claim against respondent No. 6 on the same having been withdrawn by the petitioner. Liberty, however, is hereby given to the petitioner to challenge the order, dated 27.2.2009, whereby respondent No. 6 has been appointed, on officiating basis, as Superintending Engineer (Electrical). 20. Before parting with this writ petition, it is further made clear that if the petitioner's representations are not allowed, the petitioner shall have the liberty to take recourse to such provisions of law as may be permissible. 21. No order as to costs.