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2011 DIGILAW 1076 (JHR)

Samir Kumar Dutta v. Union of India

2011-12-08

JAYA ROY, PRAKASH TATIA

body2011
By Court - Heard learned counsel for the parties. 2. The petitioner-appellant was aspirant for the promotion to the rank of Senior Commandant and when he was not given that promotion, he approached this Court by filing present writ petition being W.P.(S) No. 1788 of 2002. 3. In reply, it has been stated that benchmark was “Very Good” and petitioner had entry in the A.C.Rs. as “Good” and, therefore, he was not empanelled for consideration by the Selection Committee. This point was raised by the petitioner before the learned Single Judge along with that, he also raised point that other person, who has been given promotion, was facing the charges of corruption. The learned Single Judge found no merit in the first legal point and for second issue, observed that such person has not been impleaded as party respondent. 4. Learned counsel for the petitioner-appellant submitted that now it is well settled that an entry which is as such not adverse, may become adverse if it is taken into consideration and falls below the benchmark resulting into denial of promotion. If the benchmark is “Very Good” and promotion denied because of the reason that incumbent is having ACR remark “Good” only then that “Good” becomes adverse. In that situation, such entry is required to be communicated and such person gets the right to submit representation for up-gradation of remark in his A.C.R. In support of his contention, learned counsel for the petitioner-appellant relied upon two judgements of the Hon'ble Supreme Court delivered in the case of Dev Dutt Vs. Union of India & Others reported in (2008) 8 SCC 725 which has been considered and approved in the case of Abhijit Ghosh Dastidar Vs. Union of India & Others reported in (2009) 16 SCC 146 . 5. Learned counsel for the respondents submitted that petitioner submitted representation on 26th June, 2003 and then on 5th September, 2003 which have been rejected on 20th October, 2003. It is also submitted that the Court should be slow in interfering with the decision taken by the Selection Committee and even if the decision of the Selection Committee is not reasoned order, even then the Court cannot interfere in the decision of the Selection Committee. In support of his argument, learned counsel for the respondent relied upon judgement of Hon'ble Supreme Court delivered in the case of U.P.S.C. Vs. In support of his argument, learned counsel for the respondent relied upon judgement of Hon'ble Supreme Court delivered in the case of U.P.S.C. Vs. K. Rajaiah & Others reported in JT 2005 (11) SC 1. 6. We have considered the submissions of the learned counsel for the parties and the judgements referred above. The Hon'ble Supreme Court in the above referred two judgements clearly held that non-communication of the entries in A.C.Rs of public servant (except in the armed forces) has civil consequences as it may affect his promotion and other benefits. In the case of Dev Dutt Vs. Union of India & Others (Supra) as well as Abhijit Ghosh Dastidar Vs. Union of India & Others (Supra) ratio given is that, grading “Good”, which was below the benchmark “Very Good” prescribed for promotion, then in that situation, such entry ought to have been communicated to the incumbent. In view of the above reasons, the learned Single Judge committed error of law by rejecting the petitioner's-appellant's plea that he was not communicated his entry “Good” and thereby he was denied opportunity to submit the representation against that entry as if that opportunity would have been given to the appellant, the appellant may have submitted a representation and his entry may have been upgraded to “Very Good”. 7. So far as contention of the learned counsel for the respondents that the Court should be slow or should not interfere in the decision of the Selection Committee relying upon the judgement of the Hon'ble Supreme Court in the case of U.P.S.C. Vs. K. Rajaiah & Others (Supra) which has no application to the facts of the case because the decision of the Selection Committee is not under challenge as A.C.Rs are not filled up or gradings are not given by the Selection Committee but are given by the higher officers. The Selection Committee's decision is not under challenge on the ground that it is a non-speaking order as was the case in the U.P.S.C. Vs. K. Rajaiah & Others. 8. The Selection Committee's decision is not under challenge on the ground that it is a non-speaking order as was the case in the U.P.S.C. Vs. K. Rajaiah & Others. 8. So far as contention of the counsel for the respondents that petitioner submitted representations on 26th June, 2003 and 5th September, 2003 which have been rejected on 20th October, 2003 are concerned, this fact is irrelevant in view of the fact that admittedly the petitioner was not communicated the entry “Good” and thereby has not been given opportunity to submit representation against that entry for getting his entry upgraded to “Very Good” and the representations referred above were only against the denial of promotion to the writ petitioner-appellant which have been rejected and it has been communicated to the writ petitioner-appellant that he has been denied promotion because the requisite entry “Very Good” was not there in his A.C.Rs for relevant years. 9. Therefore, following the decision of the Dev Dutt's case, the same directions, as given in the said decision, are required to be issued. 10. This appeal of the writ petitioner-appellant is allowed. The appellant has already retired. However, he may submit his representation for upgradation of the entry “Good” to “Very Good” or further. Such representation may be submitted within a period of two months from today. If the upgradation is allowed, the appellant should be considered forthwith for promotion on the promotional post retrospectively and if he is promoted, he will get the benefit of higher pension and balance of arrears of pay, however, without interest.