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2013 DIGILAW 829 (GAU)

Bhadreswar Narzari v. State of Assam

2013-11-28

B.K.SHARMA

body2013
JUDGMENT B.K. Sharma, J. 1. Heard Mr. A. Dasgupta, learned counsel for the writ petitioner, and Mr. G. Sharma, learned State counsel. I have also heard Mr. D. Baruah, learned counsel for respondent No. 5. The matter pertains to selection and appointment to the post of Revenue Sheristadar. The challenge in the writ petition is Annexure-10, i.e., minutes of the Selection Committee meeting held on 01.12.2010 by which the respondent No. 5 herein was recommended for promotion/appointment to the post of Revenue Sheristadar. The petitioner has also challenged the consequential order dated 10.12.2010 (Annexure-12) by which the respondent No. 5 was promoted as Revenue Sheristadar pursuant to the impugned selection. 2. The basic ground on which the petitioner has challenged the selection and promotion of the respondent No. 5 is that the Selection Committee did not have all the ACRs of all the incumbents under consideration. As per the requirement of the Assam Ministerial District Establishment Service Rules, 1967 (hereinafter referred to as 'the 1967 Rules'), the appointing authority is to obtain the Annual Confidential Reports (ACRs) for last five consecutive years along with relevant service particulars of all eligible persons for recruitment to the cadre of Revenue Sheristadar. Such records are required to be placed before the Selection Board. 3. There were five eligible candidates for promotion/appointment to the post of Revenue Sheristadar including the petitioner and the respondent No. 5. The Selection Committee, on the basis of the materials available on records and as were furnished to it, selected the respondent No. 5 for appointment and promotion to the post of Revenue Sheristadar making the grievance against which the petitioner has approached this Court by filing the instant writ petition. 4. It will be pertinent to mention here that the petitioner had earlier filed another writ petition, namely, WP(C) 6718/2010, challenging the promotion of the respondent No. 5 on the ground that no selection was conducted towards the promotion of the respondent No. 5. Although initially an interim order was passed on 20.12.2010, restraining the official respondents from appointing/promoting the respondent No. 5, but finally the writ petition was disposed of by order dated 25.01.2011 vacating the said interim order noticing the fact that there was a selection in which the respondent No. 5 was recommended for appointment/promotion. However, liberty was granted to the petitioner to challenge the selection of the respondent No. 5 if so advised. However, liberty was granted to the petitioner to challenge the selection of the respondent No. 5 if so advised. Thereafter, the petitioner has filed this writ petition challenging the selection and appointment of the respondent No. 5. 5. Mr. Dasgupta, learned counsel for the petitioner submits that in absence of the complete ACRs of all the incumbents under consideration, the Selection Committee could not have conducted the selection and thus the selection, so conducted, is against the provisions of the aforesaid 1967 Rules. He further submits that since the petitioner has, in the meantime, retired from service on attaining the age of superannuation on 31.05.2012, direction should be issued by this Court for promotion of the petitioner at par with the respondent No. 5 so as to entitle the petitioner better pensionary benefits. In this connection, he has placed reliance on the decision of the Apex Court, reported in Abhijit Ghosh Dastidar Vs. Union of India, (2009) 16 SCC 146 , in which the Apex Court, in the given facts and circumstances, provided for retrospective promotion of the appellant involved therein without, however, any arrear pay and allowances. Mr. Dasgupta, learned counsel for the petitioner has further submitted that this course of action is required to be adopted in the instant case in view of the fact that five years' ACRs, pertaining to the petitioner, were all available before the Selection Committee. 6. Mr. G. Sharma, learned State counsel, submits that since the Selection Committee, upon evaluation of all the materials on record including the ACRs, has recommended the respondent No. 5 for promotion/appointment to the post of Revenue Sheristadar, this Court, exercising its writ jurisdiction, will not sit on appeal over such recommendation. He also submits that the petitioner having already retired from service on attaining the age of superannuation on 31.05.2012, the writ petition has become infructuous. 7. Mr. D. Baruah, learned counsel representing the respondent No. 5, defending the impugned selection and promotion/appointment of the respondent No. 5, submits that the Selection Committee having adopted the particular criteria for promotion in tune with the provisions of the aforesaid 1967 Rules, the same is not liable to be interfered with. Referring to the earlier order of this Court, dated 20.05.2013, by which the ACRs of the incumbents, who were under consideration for promotion, had been called for, Mr. Referring to the earlier order of this Court, dated 20.05.2013, by which the ACRs of the incumbents, who were under consideration for promotion, had been called for, Mr. D. Baruah submits that on perusal of the available ACRs, it will go to show that the respondent No. 5 had better grading in the relevant years. According to him, even otherwise also the Selection Committee having considered the available ACRs along with other relevant service particulars and having assigned marks, the said methodology, adopted by the Selection Committee, in the absence of any allegation of mala fide, is not required to be interfered with by this Court in exercise of its power under Article 226 of the Constitution of India. 8. Mr. D. Baruah, learned counsel, also submits in reference to the decision of the Apex Court, reported in Chandra Singh & Ors. Vs. State of Rajasthan & Anr., (2003) 6 SCC 545 , that in the peculiar facts and circumstances of the instant case this Court is entitled to go through the ACRs, which have been produced by the learned State counsel so as to arrive at its own satisfaction to find out as to whether the impugned selection requires any interference and/or any injustice has been done to the petitioner. 9. I have given my conscious consideration to the submissions made by the learned counsel for the parties and I have also perused the entire materials on record including the ACRs produced by Mr. Sharma, learned State counsel. 10. It is an admitted position that the Selection Committee did not have the ACRs of five consecutive years while considering the cases of the five eligible incumbents including the petitioner and the respondent No. 5. This fact finds mention in the minutes of the Selection Committee meeting held on 01.12.2010. While the ACRs of the petitioner for all five years were available, but for the other incumbents same was not the case. So far as the respondent No. 5 is concerned, ACRs for three years were available. It is in such circumstances, more particularly when, pursuant to the selection made the respondent No. 5 has been promoted about three years back vide order dated 10.12.2010, this Court thought it prudent to look into the ACRs of the incumbents. So far as the respondent No. 5 is concerned, ACRs for three years were available. It is in such circumstances, more particularly when, pursuant to the selection made the respondent No. 5 has been promoted about three years back vide order dated 10.12.2010, this Court thought it prudent to look into the ACRs of the incumbents. The Selection Committee, in the absence of all the available ACRs of all the incumbents, took recourse to consideration of the ACRs for two years. While doing so, the Selection Committee categorized the officers as 'outstanding', 'Very good', and 'good' etc., and awarded marks accordingly. The Selection Committee also considered the service records, educational qualification and work experience, etc., of the incumbents under consideration and eventually awarded marks. While the petitioner secured 6 marks, all the other four incumbents secured 7 marks. Considering the four incumbents, who had secured 7 marks each, the Selection Committee also took into consideration the educational qualification, etc., of those incumbents and eventually recommended the respondent No. 5 for promotion since he was the senior-most among the four candidates. 11. The aforesaid selection was made pursuant to the judgment and order of this Court, dated 07.01.2009, in WP (C) 3255/2007 and WP (C) 4198/2007. By the said judgment and order, direction was issued for conducting for promotion/appointment to the post of Revenue Sheristadar. 12. Mr. Dasgupta, learned counsel for the petitioner submits that even the ACRs, which have been produced by Mr. Sharma, learned State counsel, did not contain the ACRs of all the five years of the respondent No. 5. However, on perusal of the ACRs, it is found that the ACRs of all the five years of both the incumbents are available on record. 13. Another ground, urged by Mr. Dasgupta, learned counsel for the petitioner, is that the ACRs were prepared in one go and there was no fair assessment of the performance of the incumbents and everything was done hurriedly. On perusal of the ACRs, it is found that the respondent No. 5 obtained better gradings than the petitioner. Although Mr. 13. Another ground, urged by Mr. Dasgupta, learned counsel for the petitioner, is that the ACRs were prepared in one go and there was no fair assessment of the performance of the incumbents and everything was done hurriedly. On perusal of the ACRs, it is found that the respondent No. 5 obtained better gradings than the petitioner. Although Mr. Dasgupta, learned counsel for the petitioner submits that the ACRs could not have been prepared more or less at the same time, but in the matter of preparation of ACRs, it cannot be said to be impermissible to prepare ACRs of the different periods at a particular point of time, more particularly when the ACRs were not prepared at the relevant time. Significantly, all the ACRs, pertaining to the incumbents were written prior in point of time than the selection that was held on 01.12.2010. 14. In absence of the ACRs for five years of all the incumbents, barring the petitioner, the Selection Committee adopted the particular procedure for evaluation of the service records of the incumbents. While doing so, same yardstick and parameters were applied in respect of all the incumbents. 15. To quell any doubt, (his Court, by order dated 12.11.2013, directed the State respondents to produce the ACRs of the petitioner and the respondent No. 5 in respect of the relevant years. On the perusal of the said ACRs, it cannot be said that the Selection Committee did any illegality in selecting the respondent No. 5. It is in this context Mr. D. Baruah, learned counsel, has placed reliance on Chandra Singh & Ors. (supra), in which, under somewhat similar circumstances the Apex Court had the occasion to go through the ACRs to derive satisfaction as to whether any injustice had been done in the particular case. The decision on which Mr. Dasgupta, learned counsel for the petitioner has placed reliance upon, i.e., Abhijit Ghosh Dastidar (supra), is a decision in the given facts and circumstances. In that case, when it was found that the benchmark was 'very good' and the petitioner all along had Very good' in the previous year in the ACR, the Apex Court by exercising its jurisdiction, ordered for retrospective promotion of the appellant. 16. In that case, when it was found that the benchmark was 'very good' and the petitioner all along had Very good' in the previous year in the ACR, the Apex Court by exercising its jurisdiction, ordered for retrospective promotion of the appellant. 16. Once it is found that the Selection Committee had recommended the respondents No. 5 on the basis of all the available materials and that no illegality was committed in making the said recommendation, this Court, exercising of judicial review under Article 226 of the Constitution of India, cannot issue any direction for promotion of the petitioner with retrospective effect. Considering the matter in its entirety including all the materials on record, I am not inclined to set aside the impugned selection/promotion of the respondent No. 5. Consequently, the writ petition is dismissed, without, however, any order as to costs. Petition dismissed