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2014 DIGILAW 180 (TRI)

Akhirai Deb Barma v. State of Tripura

2014-05-07

S.TALAPATRA

body2014
JUDGMENT S. Talapatra, J.:- An identical question has been projected in these writ petitions and simply for that reason all these writ petitions are tied up together for disposal by a common judgment. 2. Adverse remarks had been recorded in the annual confidential rolls of the petitioners for the assessment year 2004-05. The petitioners had filed the representations against such adverse remarks but those representations were rejected. Thereafter, the petitioners filed petitions for review against the said order of rejection to the Chief Secretary, Government of Tripura, but the Chief Secretary had also declined to interfere with the adverse remarks. As a result, the petitioners by filing three separate writ petitions had approached this Court. The reliefs in the writ petitions are somehow common in nature. The petitioners had prayed for expunging adverse remark, for quashing the orders rejecting their representations and the decision communicated by the Memorandum dated 07.04.2006 on rejection of the review petition filed by the petitioners. 3. For the purpose of appreciating the factual matrix of each of the writ petitions, it would be expedient if the relevant fact is briefly noted against each of the writ petitions. In W.P. (C) No. 160 of 2006 The petitioner, namely Akhirai Deb Barma, was working as the section officer in the Law Department, Government of Tripura and the petitioner had all the requisite qualifications for promotion to the post of Under Secretary to the Government of Tripura. While the promotion was impending the petitioner got a communication from the General Administration (P & T) Department, Government of Tripura under No. F.1(4)-GA(P & T)/CON/99 dated 30.11.2005 by which the petitioner had been intimated that certain adverse remarks in his ACRs for the assessment year 2004-05 had been recorded. The adverse remarks as available from the Annexure-A to the writ petition are that the petitioner is not capable of handling the matters referred to him. He lacks sincerity and devotion to duty. He has failed to discharge his duties and responsibilities effectively. He has failed to maintain a healthy inter-personal relationship in the office. His skill of communication is below average and he has never found willing to take responsibility. He does not have any initiative, coordination on planning ability. He also lacks appraising ability. This communication has been challenged. He has failed to discharge his duties and responsibilities effectively. He has failed to maintain a healthy inter-personal relationship in the office. His skill of communication is below average and he has never found willing to take responsibility. He does not have any initiative, coordination on planning ability. He also lacks appraising ability. This communication has been challenged. By another communication dated 27.12.2005, Annexure-B to the writ petition, the petitioner had placed para-wise comments against the adverse remarks contending that those remarks are unsubstantiated and inconsistent in nature, deviation from objectivity in assessment of performance and rather stems from malice, adverse attitude against tribal officers, abrupt departure from the performance of the petitioner as recorded earlier in the ACRs. Thereafter, based on the said adverse remarks, the petitioner was superseded while making promotion to the post of Grade-II, Under Secretary to the Government of Tripura, in the Tripura Secretariat Service, in the scale of pay of Rs. 10,000-15,100/- by the notification dated 19.12.2005, Annexure-D to the writ petition. The petitioner filed an elaborate representation against such adverse remarks on 20.02.2006 to the Chief Secretary to the Government of Tripura but the said representation did not fetch any positive result as by the Memorandum dated 07.04.2006, Annexure-F to the writ petition, the said representation was rejected. According to the petitioner, some juniors were appointed to the post of Under Secretary to the Government of Tripura by the Notification dated 19.12.2005 but the petitioner neither has disclosed the name of those juniors nor impleaded them as the respondents in his writ petition. In reply to the allegation of the petitioner the respondents by filing the counter affidavit have denied such allegations and contended that after objective and due assessment of the performance the adverse remarks have been reflected in his ACRs. By the counter affidavit they have further contended that the selection committee did not recommend the petitioner for appointment on promotion. Due to adverse remarks he was not promoted. The petitioner has also filed a rejoinder reiterating his contentions made in the writ petition and also for laying emphasis that he was discharging his duties effectively and efficiently. In W.P. (C) No. 190 of 2006 The petitioner, namely Smti. Due to adverse remarks he was not promoted. The petitioner has also filed a rejoinder reiterating his contentions made in the writ petition and also for laying emphasis that he was discharging his duties effectively and efficiently. In W.P. (C) No. 190 of 2006 The petitioner, namely Smti. Purnima Das, while working as the section officer in the Law Department, Government of Tripura she received a communication from the General Administration (P & T) Department, Government of Tripura under No. F.1(4)-GA(P & T)/CON/99 dated 30.11.2005 whereby some adverse remarks have been communicated as those were recorded in her ACRs for the year 2004-05. The adverse remarks recorded in her ACRs for the said year are that she does not have the skill for her job as she lacks sincerity and devotion to her duty. She has failed to discharge her duties and responsibilities effectively. She has failed to maintain a healthy interpersonal relationship in the office, she is not skilled either in the oral or the written communication. She does have the least concern for the office. She does not possess any of the qualities of an efficient officer, she does not have initiative, willingness to take responsibility or ability to inspire others. The petitioner placed para-wise comments against those adverse remarks on 14.12.2005, Annexure-B to the writ petition. The said representation was rejected by the Memorandum dated 10.02.2006, Annexure-C to the writ petition. Thereafter, she filed another representation to the Chief Secretary, Government of Tripura for expunging those adverse remarks. But by the Memorandum dated 07.02.2006 the said representation was rejected. Again the petitioner filed a petition for expunging the adverse remarks to the Chief Secretary, Government of Tripura but the said representation was rejected by the Chief Secretary, Government of Tripura by the Memorandum dated 07.07.2007. In W.P. (C) No. 204 of 2006 The petitioner, namely Smti. Bhaswati Deb Barma, was working as the section officer in the Law Department, Government of Tripura. The adverse remarks those have been reflected in her ACRs for the year 2004-05 communicated under No. F.1(4)-GA(P & T)/CON/99 dated 30.11.2005 whereby she was assessed ’average’ against the performance and ’average’ against the communication skill both oral and written. The remarks, adverse to her, as recorded are that she lacks knowledge but she has willingness to learn against the general assessment. The remarks, adverse to her, as recorded are that she lacks knowledge but she has willingness to learn against the general assessment. The petitioner had filed her reply against those adverse remarks by a communication dated 15.12.2005, Annexure-B to the writ petition. By filing another representation, Annexure-C to the writ petition, she had contended that the adverse remarks so entered in her ACRs cannot be taken into consideration inasmuch as those were communicated after the time-frame as stipulated. Thereafter, by the Memorandum dated 10.02.2006, Annexure-D to the writ petition, the said representation of the petitioner was rejected holding that the adverse remarks could not be expunged. The petitioner by filing another representation dated 20.02.2006, Annexure-E to the writ petition, urged to expunge those uncalled for adverse remarks from her ACRs but by the Memorandum dated 07.04.2006, Annexure-F to the writ petition, the said representation was rejected. In the meanwhile, by the Notification dated 19.12.2005, 20 officers borne in the Grade-III of the Secretariat Service (Section Officer) were promoted to the post of Under Secretary to the Government of Tripura, borne in the Grade-II of the Tripura Secretariat Service. Further, it appears that by the Memorandum dated 07.07.2007 the petitioner’s grading for the year 2004-05 was upgraded from ’average’ to ’good’. 4. By filing the counter affidavit, the respondents denied the allegations that the assessments were personal not objective and the adverse remarks are not reflection of her performance and character. The respondents have contended that for the adverse remarks recorded in the ACRs for the period from 2004-05 the Departmental Promotion Committee (DPC) did not consider her to be fit for promotion and that is the reason the petitioner was not promoted by the Notification dated 19.12.2005. 5. Except the petitioner of the writ petition being W.P. (C) No. 190 of 2006, other writ petitioners have challenged the Notification dated 19.12.2005 whereby as many as 20 officers borne in the Grade-III of the Secretariat Service were promoted to the post of the Under Secretary under Rule 7(2)(b)(ii) of the Tripura Secretariat Service Rules, 1989. 5. Except the petitioner of the writ petition being W.P. (C) No. 190 of 2006, other writ petitioners have challenged the Notification dated 19.12.2005 whereby as many as 20 officers borne in the Grade-III of the Secretariat Service were promoted to the post of the Under Secretary under Rule 7(2)(b)(ii) of the Tripura Secretariat Service Rules, 1989. From the records, as produced by the respondents and in particular from the final seniority list of the Section Officers in the Secretariat Service, Shri Kumar Jamatia, Shri Ajit Debbarma, Smt. Ratri Debbarma and Shri Ananda Debbarma, belonging to the scheduled tribes category were juniors to the writ petitioner namely Akhirai Deb Barma and Bhaswati Deb Barma and they were promoted by the Notification dated 19.12.2005. But none of the juniors to Smt. Purnima Das was considered by the departmental promotion committee. As such, the grievance of the writ petitioner namely Smt. Purnima Das is wholly against the adverse remarks reflected in her ACRs for the year 2004-05. 6. The common question that binds these writ petitions is that whether the adverse remarks as reflected in the ACRs of the writ petitioners were unjust and ancillary thereto, whether the denial of the promotion to the writ petitioners namely Akhirai Deb Barma and Smt. Bhaswati Deb Barma was just or proper inasmuch as, according to the contention of the respondents, such denial is based on the said adverse remarks. Even though it has been noticed that overall grading of the writ petitioner namely Smt. Bhaswati Deb Barma was modified but in the case of the others even that did not happen. 7. Mr. B. Das, learned senior counsel along with Mr. D. Chakraborty, learned counsel for the petitioners has robustly contended that the adverse remarks as reflected in the ACRs of the writ petitioners should have been expunged by the authority on their representation. By not expunging such adverse remarks the writ petitioners have been subjected to prejudice as the representations were rejected mechanically without objective assessment and without considering the grounds of objection raised by the writ petitioners. Mr. Chakraborty, learned counsel for the petitioner while continuing the submission for the petitioners has placed reliance on U.P. Jal Nigam and others vs. Prabhat Chandra Jain and others as reported in (1996) 2 SCC 363 . Mr. Chakraborty, learned counsel for the petitioner while continuing the submission for the petitioners has placed reliance on U.P. Jal Nigam and others vs. Prabhat Chandra Jain and others as reported in (1996) 2 SCC 363 . In U.P. Jal Nigam it has been held that: All what is required by the Authority recording confidentials in the situation is to record reasons for such down grading on the personal file of the officer concerned, and inform him of the change in the form of an advice. If the variation warranted be not permissible, then the very purpose of writing annual confidential reports would be frustrated. Having achieved an optimum level the employee on his part may slacken in his work, relaxing secure by his one time achievement. This would be an undesirable situation. All the same the sting of adverseness must, in all events, be not reflected in such variations, as otherwise they shall be communicated as such. It may be emphasised that even a positive confidential entry in a given case can previously be adverse and to say that an adverse entry should always be qualitatively damaging may not be true. In the instant case we have seen the service record of the first respondent. No reason for the change is mentioned. The down grading is reflected by comparison. This cannot sustain. Having explained in this manner the case of the first respondent and the system that should prevail in the Jal Nigam, we do not find any difficulty in accepting the ultimate result arrived at by the High Court. 8. The law of recording or communicating adverse remarks has been further illustrated by the apex court in Satya Narain Shukla vs. Union of India and others as reported in (2006) 9 SCC 69 where it has been held that the procedure for communication of the ACRs cannot be questioned by the persons so affected by saying that even good and very good remarks made in the ACRs should also be compulsorily communicated as it is the function of the Government. The court cannot interfere in such matter, unless a strong case of mala fide is made out. This approach of the apex court got substantially changed. 9. The court cannot interfere in such matter, unless a strong case of mala fide is made out. This approach of the apex court got substantially changed. 9. In Dev Dutt vs. Union of India and others as reported in (2008) 8 SCC 725 where the apex court has laid down certain guidelines regarding communication of the remarks in the ACRs. But those are not relevant in the present case inasmuch as it is undisputed that the adverse remarks were duly communicated to the petitioners. In Dev Dutt it has been observed by the apex court as under: Hence, in our opinion, the ’good’ entry should have been communicated to the appellant so as to enable him to make a representation praying that the said entry for the year 1993-94 should be upgraded from ’good’ to ’very good’. Of course, after considering such a representation it was open to the authority concerned to reject the representation and confirm the ’good’ entry (though of course in a fair manner), but at least an opportunity of making such a representation should have been given to the appellant, and that would only have been possible had the appellant been communicated the ’good’ entry, which was not done in this case. Hence, we are of the opinion that the non-communication of the ’good’ entry was arbitrary and hence illegal, and the decisions relied upon by the learned Counsel for the respondent are distinguishable. 10. Dev Dutt is a celebrated decision for opening avenue for directing the authorities to communicate even the better remarks recorded in the ACRs. Thus, in respect of any grading reflected in the ACRs the officer concerned has been provided with opportunity to have his say. Further it has been directed that if any representation is filed that has to be disposed of within two months thereafter so that in no way the officer suffers for pendency of decision on the representation. Dev Dutt has been followed in a larger bench decision of the apex court in Abhijit Ghosh Dastidar vs. Union of India and others reported in (2009) 16 SCC 146 . 11. Mr. Chakraborty, learned counsel for the petitioners has referred a decision of the apex court in K.M. Mishra vs. Central Bank of India and others reported in (2008) 9 SCC 120 . 11. Mr. Chakraborty, learned counsel for the petitioners has referred a decision of the apex court in K.M. Mishra vs. Central Bank of India and others reported in (2008) 9 SCC 120 . The decision has considered the aspects of the adverse remarks and consideration of the adverse remarks without communication. In a recent decision in Sukhdev Singh v. Union of India and others reported in 2013 AIR SCW 3801 the apex court after considering all the precedents has observed that: In our opinion, the view taken in Dev Dutt that every entry in ACR of a public servant must be communicated to him/her within a reasonable period is legally sound and helps in achieving threefold objectives. First, the communication of every entry in the ACR to a public servant helps him/her to work harder and achieve more that helps him in improving his work and give better results. Second and equally important, on being made aware of the entry in the ACR, the public servant may feel dissatisfied with the same. Communication of the entry enables him/her to make representation for upgradation of the remarks entered in the ACR. Third, communication of every entry in the ACR brings transparency in recording the remarks relating to a public servant and the system becomes more conforming to the principles of natural justice. We, accordingly, hold that every entry in ACR-poor, fair, average, good or very good-must be communicated to him/her within a reasonable period. (Emphasis added) 12. Mr. S. Chakraborty, learned Addl. GA appearing for the respondents has produced the records to demonstrate how the representations filed by the petitioners were considered by the respondents in the various layers. Mr. Chakraborty, learned Addl. GA has seriously contended that there had been no bias or discriminatory attitude or mala fide against the petitioners. All the aspects were reappraised by the competent authorities. On such reappraisal the adverse remarks as entered in the ACRs of the petitioners for the year 2004-05 have been retained in the respective ACRs of the petitioner. Even though the writ petitioners namely Akhirai Deb Barma and Smt. Bhaswati Deb Barma were in the zone of consideration for promotion to the post of Under Secretary borne in the Grade-II of Tripura Secretariat Service but they were found by the DPC as unfit for the adverse remarks entered in their service book. Even though the writ petitioners namely Akhirai Deb Barma and Smt. Bhaswati Deb Barma were in the zone of consideration for promotion to the post of Under Secretary borne in the Grade-II of Tripura Secretariat Service but they were found by the DPC as unfit for the adverse remarks entered in their service book. He has also produced the proceedings of the selection committee (Class-I DPC) held on 05.12.2005. From the said records it has appeared that the petitioners were in the zone of consideration. Their names were sent for consideration for promotion. But it has been found by the DPC that the case of Shri Akhirai Deb Barma could not be considered for the adverse remarks as entered in his ACR. It has been also observed by the DPC that ST/SC candidates in the zone of consideration shall not come under the purview of the minimum bench mark subject to rejection for being unfit. The other petitioner namely Smt. Bhaswati Deb Barma, for her adverse remarks for the year 2004-05 and also for her grading in the previous years was declared unfit but the writ petitioner namely Smt. Purnima Das was neither declared fit or unfit as the required number of the officers who were above her in the seniority list of SC category were found suitable. Thus, no prejudice has been caused to her. 13. From the records as produced, it has appeared that the procedure of disposing the representation against adverse remarks cannot be held arbitrary or in violation of the natural justice. The decisions as cited by the learned counsel for the petitioner have no relevance in the present context. Due notices were issued to the petitioners communicating the adverse remarks and they have made the representations against those adverse remarks to the authorities. Even the Chief Secretary, Government of Tripura has examined their representations but found the adverse remarks not unjustified. 14. In view of this, this Court cannot make further inquiry even on acknowledging that sometime subjectivity of the assessment or assessment not made bona fide may stumble the prospect of the assessed officer. Veil has to be lifted by placing material. To prove malice or mala fide is the duty of the petitioner. The petitioners have not discharged that duty, even though they have averred generally. Veil has to be lifted by placing material. To prove malice or mala fide is the duty of the petitioner. The petitioners have not discharged that duty, even though they have averred generally. But on the face of the denial, they have not pursued that aspect of the challenge on placing the relevant materials before this Court. Having held so, this Court does not find any merit in these petitions and accordingly those are dismissed. However, in the circumstances of the case, there shall be no order as to costs.