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2014 DIGILAW 284 (TRI)

Swapan Kr. Roy v. State of Tripura

2014-07-21

S.C.DAS

body2014
JUDGMENT S.C. Das, J.:-- 1. Both the writ petitions involved identical issues and hence on the request of learned counsel of both side those were heard together and this common judgment is passed which shall govern both the cases. 2. By filing the respective writ petitions the petitioners prayed for issuing a writ of mandamus directing the respondents to consider their promotion in the post of Assistant Engineer (Tripura Engineering Service Grade-IV) with effect from the date their juniors have been promoted pursuant to office order dated 14.07.2006. 3. Heard learned counsel of both side. 4. It is an admitted position that the petitioner of WP(C) No. 460 of 2006 was appointed in the post of Overseer on 22.09.1978 and the petitioner of WP(C) No. 09 of 2007 was appointed in the same post on 07.08.1979 in due process under the Public Works Department, Government of Tripura and they are diploma holder engineers. After the Tripura Engineering Service, 1987 came into force, the post of Overseer has been re-designated as Junior Engineer (Tripura Engineering Service Grade V). It is also an admitted position that as per the provision prescribed in Rule 6(E) of Tripura Engineering Service Rules, a junior engineer is eligible to be promoted to the post of Assistant Engineer after five years of satisfactory service. 5. It is the case of the petitioners that they have discharged their duties to the best of their efficiency and to the satisfaction to their superior authority and that their service career is without blemish. They have also contended that they were serving in the same post with all their efficiency and devotion for many years and in the year 2006 the matter of promotion from the post of junior engineer to the post of assistant engineer was taken up and by office order dated 14.07.2006, Annexure-2 of WP(C) No. 460 of 2006 and Annexure-3 of WP(C) No. 09 of 2007, altogether 151 junior engineers of both degree and diploma holders were promoted and the petitioners were also expecting their promotion but to their extreme surprise and astonishment they found their juniors were promoted whereas they were not promoted to the post of assistant engineers. 6. 6. It is an admitted position that for promotion to the post of assistant engineer from the post of junior engineer Annual Confidential Report (ACR) of last five years was considered and according to the rules, one has to have at least three ‘very good’ benchmark in the ACRs of last five years for promotion and since the petitioners were not having three ‘very good’ benchmark in their ACRs of last five years they were not considered for promotion to the post of assistant engineer. 7. Both the petitioners gathered information through RTI about their deprivation of promotion after office order dated 14.07.2006 was issued. 8. The petitioner of WP(C) No. 460 of 2006 contended that his ACRs for the period from 01.04.2002 to 31.03.2005 were written by officers who were not his reporting officers and he has categorically mentioned the officers who were supposed to write his ACRs and it is alleged that the reporting officers who wrote the ACRs have no idea or knowledge about the petitioner’s ability, performance, etc. during those period of reporting. The petitioner also alleged that on inspection of the ACRs through RTI he found that the ACRs were written most casually and hypothetically by the unauthorized persons in a wayward and irresponsible manner and as a result the petitioner has been deprived from his due promotion. Such allegation made in para 2 of the petition has been dealt with by the respondents in para 9 of the counter affidavit and they have not specifically controverted the allegation of the petitioner. 9. The petitioner of WP(C) No. 09 of 2007 alleged that out of five years of ACRs, the ACRs for the year 2000-01 and 2001-02 were written by an assistant engineer under whom the petitioner never worked and out of the rest three years of ACRs, i.e. for the year 2002-03, the bench-mark was ‘very good’ and for the year 2003-04 was ‘good’ and for the year 2004-05, the bench-mark was ‘very good’. Since the ACRs for the years 2000-01 and 2001-02 were written by unauthorized person the petitioner was deprived of promotion since it was not within the notice of the DPC that unauthorized person under whom the petitioner did not at all work, written the ACR of the petitioner. Since the ACRs for the years 2000-01 and 2001-02 were written by unauthorized person the petitioner was deprived of promotion since it was not within the notice of the DPC that unauthorized person under whom the petitioner did not at all work, written the ACR of the petitioner. The allegation made by the petitioner in para 8, 9, 10 and 11 of the petition has been dealt with by the respondents in para 10 and 11 of the counter affidavit and the respondents admitted that ACRs for the year 2000-01 and 2001-02 were given on the basis of the performance reflected in various works on those days. They have not specifically denied the allegation that those ACRs were written by an officer under whom the petitioner did not work. 10. It is further contended by the respondents that not only the ACRs but also other aspects were supposed to be considered by the selection committee for the purpose of promotion and since the petitioners were not found fit for promotion by the selection committee they could not be promoted to the post of assistant engineer along with others as per office order dated 14.07.2006. 11. Learned senior counsel, Mr. Chakraborty and learned counsel, Mr. Biswas appearing for the petitioners submitted that the petitioners rendered unblemished service for many years from the date of their appointment and before the year 2004 there was no form of ACR to record a benchmark, ‘good’ or ‘very good’, etc. 12. In WP(C) No. 09 of 2007, the petitioners annexed two forms of ACRs as Annexure-7 and Annexure-7A of the writ petition which were used for annual confidential report till the year 2004 and on perusal of the same I find that there was no such particular column to record a bench-mark, ‘good’ or ‘very good’, etc. The respondents contended that the said ACR form subsequently been amended and now the grading of ‘good’, ‘very good’, etc. is a part of the ACR form. It is, therefore, clear that earlier in the ACR forms there was no scope of recording any bench-mark ‘good’ ‘very good’ before the year 2004. 13. The ACRs of petitioner of WP(C) No. 460 of 2006 as alleged, were not recorded by the officer under whom the petitioner had been working during the period from 2000-2004. It is, therefore, clear that earlier in the ACR forms there was no scope of recording any bench-mark ‘good’ ‘very good’ before the year 2004. 13. The ACRs of petitioner of WP(C) No. 460 of 2006 as alleged, were not recorded by the officer under whom the petitioner had been working during the period from 2000-2004. It has been recorded by some other officers and therefore those cannot be accepted for the purpose of consideration of the merit of the petitioner while considering his promotional aspect. In the case of WP(C) No. 09 of 2007, the ACRs of the petitioner for the year 2000-01 and 2001-02 were not written by the authorized officer under whom the petitioner worked. So, the bench-mark, if any recorded for those two years of the petitioner should have been considered by the departmental promotion committee or the selection committee as the case may be. 14. The Supreme Court in the case of Dev Dutt v. Union of India & Ors. reported in 2008 AIR SCW 3486 has observed that fairness and transparency in public administration requires that all entries whether ‘poor’, ‘fair’, ‘average’, ‘good’ or ‘very good’ in the annual confidential report of a public servant, whether in civil, judicial, police or any other State service must be communicated to him within a reasonable period so that he can make a representation for its up-gradation. In the case of the petitioners, a bench-mark, ‘very good’ is essential for the purpose of his promotion. Any bench-mark less than ‘very good’ should be regarded as an adverse entry at least for the purpose of promotion and therefore non-communication of any such bench-mark to the petitioners amounts to violation of their legal rights of making representation for up-gradation of bench-mark. There is nothing in the record that the petitioners were informed by the respondents about any of the bench-mark below ‘very good’ during those five years of service before the date of the promotion by office order dated 14.07.2006. Para 10 and 24 of the judgment of the apex Court in Dev Dutt (supra) may fairly be noted here for appreciation of the fact of the present case which reads as follows: 10. Para 10 and 24 of the judgment of the apex Court in Dev Dutt (supra) may fairly be noted here for appreciation of the fact of the present case which reads as follows: 10. In the present case the bench-mark (i.e. the essential requirement) laid down by the authorities for promotion to the post of Superintending Engineer was that the candidate should have ‘very good’ entry for the last five years. Thus in this situation the ‘good’ entry in fact is an adverse entry because it eliminates the candidate from being considered for promotion. Thus, nomenclature is not relevant, it is the effect which the entry is having which determines whether it is an adverse entry or not. It is thus the rigours of the entry which is important, not the phraseology. The grant of a ‘good’ entry is of no satisfaction to the incumbent if it in fact makes him ineligible for promotion or has an adverse effect on his chances. 24. It may be mentioned that communication of entries and giving opportunity to represent against them is particularly important on higher posts which are in a pyramidical structure where often the principle of elimination is followed in selection for promotion, and even a single entry can destroy the career of an officer which has otherwise been outstanding throughout. This often results in grave injustice and heart-burning, and may shatter the morale of many good officers who are superseded due to this arbitrariness, while officers of inferior merit may be promoted. 15. Since in the cases at hand, the ACRs of the petitioners were not written by authorized persons under whom the petitioners worked during the period of five years before the date of promotion, deprivation of their promotion based on any bench-mark recorded by such unauthorized officers amounts to violation of the fundamental rights of the petitioners and, hence, I consider the cases at hand are fit cases where the respondents should be directed to consider the promotion of the petitioners with effect from 14.07.2006 notionally. 16. The writ petitions are accordingly allowed. The respondents are directed to give promotion to the petitioners notionally w.e.f. 14.07.2006 and the process should be completed within 60 days from today. 17. I make easy the cost of the proceedings.