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2013 DIGILAW 648 (GAU)

K. Chhungrema v. State of Mizoram

2013-09-03

NISHITENDU CHAUDHURY

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JUDGMENT Nishitendu Chaudhury, J. 1. Heard Mr. N. Sailo, learned senior counsel assisted by Mrs. Dinari T. Azyu, learned counsel for the petitioner and Mr. Aldrin Lallawmzuala, learned Addl. A.G., Mizoram for respondent Nos. 1-4. Also heard Mr. M. Zothankhuma, learned senior counsel assisted by Mr. Lalfakawma, learned counsel for the respondent No. 5. By this application under Article 226 of the Constitution of India, the petitioner has challenged the failure on the part of the respondents herein to communicate adverse entry to the petitioner because of which he has been deprived of promotion to the next higher post. 2. The petitioner was appointed as a Fieldman by order dated 21.8.1982 and was posted in the office of the District Agriculture Officer, Aizawl West. He was thereafter promoted to the Subordinate Agriculture Service, Class-II by order dated 10.2.2004 and thereupon he was posted to Teikhang Sub-Circle under the jurisdiction of District Agriculture Officer, Champhai. The petitioner has been working in the same post. The next promotional post available to an officer is Grade-V in the Mizoram Agriculture Service. It is stated that in the seniority list of Subordinate Agriculture Service. The name of the petitioner appears at Sl. No. 7 and as such, he was entitled to be considered for next promotional post. He was really considered for the same but the Mizoram Public Service Commission did not select the petitioner in view of the fact that he was graded as "Good" and not "Very Good" in the ACR for the relevant years. Under paragraph 3.5 of the DPC, it is necessary that an officer for being eligible to the next higher post must be graded "Very Good" for a continuous period of 5 years. In the case in hand, the present petitioner was not given such grading during the relevant period but for which he was not selected. According to the petitioner had he been communicated about his not being graded as "Very Good" in the ACR in appropriate time, he would have the opportunity of filing representation before the appropriate forum and in that event there was likelihood of his getting a gradation "Very Good" thereby entitling him to the next promotional post. 3. According to the petitioner had he been communicated about his not being graded as "Very Good" in the ACR in appropriate time, he would have the opportunity of filing representation before the appropriate forum and in that event there was likelihood of his getting a gradation "Very Good" thereby entitling him to the next promotional post. 3. The respondents have filed affidavit and in paragraph 4 of the said affidavit it is stated that there was no adverse entry in the ACR of the petitioner and since grading of the petitioner was "Good" in the ACR there was no question of making any communication to him in this regard. The learned Addl. Advocate General, Mizoram submits that as there was no adverse entry in the ACR there was no question of communicating the same and as such no illegality has been done to the petitioner. 4. Mr. N. Sailo, learned senior counsel appearing for the petitioner on the other hand submits that communication of an entry in the ACR is a must in view of law laid down by the Hon'ble Supreme Court in the case of Dev Dutt vs. Union of India & Ors. reported in (2008) 8 SCC 725 . The learned counsel has drawn my attention to paragraphs 13, 16 & 17 of the said judgment and the same are quoted below:- "13. In our opinion, every entry (and not merely a poor or adverse entry) relating to an employee under the State or an instrumentality of the State, whether in civil, judicial, police or other service (except the military) must be communicated to him, within a reasonable period, and it makes no difference whether there is a bench mark or not. Even if there is no bench mark, non-communication of an entry may adversely affect the employee's chances of promotion (or getting some other benefit), because when comparative merit is being considered for promotion (or some other benefit) a person having a 'good' or 'average' or 'fair' entry certainly has less chances of being selected than a person having a 'very good' or 'outstanding' entry. 16. 16. In our opinion if the Office Memorandum dated 10/11.09.1987, is interpreted to mean that only adverse entries (i.e. 'poor' entry) need to be communicated and not 'fair', 'average' or 'good' entries, it would become arbitrary (and hence illegal) since it may adversely affect the incumbent's chances of promotion, or get some other benefit. For example, if the bench mark is that an incumbent must have 'very good' entries in the last five years, then if he has 'very good' (or even 'outstanding') entries for four years, a 'good' entry for only one year may yet make him ineligible for promotion. This 'good' entry may be due to the personal pique of his superior, or because the superior asked him to do something wrong which the incumbent refused, or because the incumbent refused to do sycophancy of his superior, or because of caste or communal prejudice, or for some other extraneous consideration. 17. In our opinion, every entry in the A.C.R. of a public servant must be communicated to him within a reasonable period, whether it is a poor, fair, average, good or very good entry. This is because non-communication of such an entry may adversely affect the employee in two ways: (1) Had the entry been communicated to him he would know about the assessment of his work and conduct by his superiors, which would enable him to improve his work in future (2) He would have an opportunity of making a representation against the entry if he feels it is unjustified, and pray for its up gradation. Hence non-communication of an entry is arbitrary, and it has been held by the Constitution Bench decision of this Court in Maneka Gandhi vs. Union of India (supra) that arbitrariness violates Article 14of the Constitution." 5. It appears from paragraph 13 as well as 17 of the judgment of the Hon'ble Supreme Court referred to above that the very proposition of the learned Addl. Advocate General in regard to the communication is not a correct one. The Hon'ble Supreme Court has held that all entries irrespective of whether the same is adverse or not must be communicated to the employee so as to enable him to make necessary improvement. Even an outstanding ACR also needs to be communicated to the employee inasmuch as the same would boost up morale so as to rededicate for service with more vigour. Even an outstanding ACR also needs to be communicated to the employee inasmuch as the same would boost up morale so as to rededicate for service with more vigour. In the light of the such observations of the Hon'ble Supreme Court, it is merely consequential to hold that the respondents are making errors in not communicating the entries, namely, "Good" to the petitioner during the period referred to above which was relevant for his promotion to the Grade-V of Mizoram Agriculture Service. 6. Even apart from the law laid down by the Hon'ble Supreme Court in the case of Dev Dutt (supra) the word "adverse entry" does not have a fixed definition of its own. What may be adverse for an employee at a particular stage may not be adverse to him for all stages. For instance, in the case in hand, it is the requirement to have an entry "Very Good" in the ACR for the purpose of entitling oneself to the next promotional post. Any entry less than "very good" is obviously adverse to the interest of the petitioner at this stage when he is expecting promotion to the next higher post. Whether an entry is adverse or not is to be decided under the facts and circumstances of the case and there cannot be a straightjacket formula for the same. Perhaps, it is one of the reasons for which the Hon'ble Supreme Court held in the case of Dev Dutt (supra) that all ACRs should be communicated to their employees. Of course, the Hon'ble Supreme Court has held that even an "outstanding" entry in the ACR should also be communicated and if it is so done, then the morale of the employee would be boosted high. 7. Taking all these aspects into matter, there is no escape from the proposition that all entries in the ACR of an employee are required to be communicated. 8. The respondents in this case have committed error in not communicating the entry "Good" to the petitioner in appropriate time. The respondents, therefore, shall communicate these entries to the petitioner within a period of 1 month and then within next 2 weeks thereafter the petitioner shall be at liberty to file representation before the concerned authority for review of the said entry/entries. The respondents, therefore, shall communicate these entries to the petitioner within a period of 1 month and then within next 2 weeks thereafter the petitioner shall be at liberty to file representation before the concerned authority for review of the said entry/entries. It appears that in another case with similar facts and circumstances this Court had directed that such representation should be filed to authority superior to the Accepting Authority of the ACR and the said judgment has been annexed to the writ petition as well. It is stated at the bar that petitioner of the said case, namely W.P. (C) No. 116 of 2011 is also an officer in the Mizoram Agriculture Service Grade-V and as such, to maintain parity, I direct that the representation, filed by the petitioner pursuant to communication on the basis of this order shall be considered by an officer higher than the Accepting Authority and in so doing the standard of fairness and reasonableness shall undoubtedly be followed. The whole exercise shall be done within a period of 1 month from the date of submission of the representation. With this direction, this writ petition is allowed. No order as to costs. Petition allowed.