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Gauhati High Court · body

2014 DIGILAW 466 (GAU)

Jiten Malakar v. State of Assam & Ors.

2014-04-28

UJJAL BHUYAN

body2014
1. The issues raised in both the writ petitions, i.e., WP(C) No. 5673/2010 and 6317/2010 being inter-related, those were heard together and are being disposed of by this common order. 2. Facts of both the cases may be briefly setout at the outset. WP(C) No. 5673/2010 3. Petitioner Shri Jiten Malakar is presently serving as Divisional Soil Conservation Officer in the Soil Conservation Department, Government of Assam. According to the petitioner, he has a distinguished service career till date. Petitioner belongs to the Scheduled Caste Community. 4. By letter dated 16.9.2010, Under Secretary to the Government of Assam, Soil Conservation Department issued a communication to the petitioner informing him that an adverse remark was recorded in his Annual Confidential Report (ACR) for the year 2009-10 by the reviewing and accepting authorities. The adverse remarks were as under: “Doubtful integrity, unruly, abusive behaviour and misconduct and can't be recommended for higher post.” Petitioner was informed that in case he wanted to make any representation against the adverse remarks, he could submit the same to the Government within seven days from the date of receipt of the communication. 5. Petitioner submitted an application dated 24.9.2010 before the respondent No. l requesting the said authority to furnish him the materials on which the adverse remarks were based and thereafter to grant him reasonable time for preparing an effective representation. Petitioner was informed by the Under Secretary vide letter dated 28.9.2010 that the reviewing officer has the inherent authority to make appropriate entries in the ACR of his subordinates. Petitioner was however, allowed three additional days to make a representation, if he so desired, before the Government. Petitioner thereafter submitted an appeal dated 1.10.2010 to the Chief Secretary to the Government of Assam with intimation to the respondent No. l requesting the Chief Secretary to review the adverse remarks and to expunge the said entry. Subsequent thereto, the Under Secretary forwarded to the petitioner vide his letter dated 6.10.2010 a copy of his ACR for the year 2009-10. As per the ACR, the reporting authority (Joint Director of Soil Conservation) had recorded as follows against the integrity column: “Reliable, nothing against his integrity.” When the ACR was placed before the reviewing authority (Director of Soil Conservation), he recorded the adverse entry as already noted above. Though there is a column for grading, petitioner was not given any grading. As per the ACR, the reporting authority (Joint Director of Soil Conservation) had recorded as follows against the integrity column: “Reliable, nothing against his integrity.” When the ACR was placed before the reviewing authority (Director of Soil Conservation), he recorded the adverse entry as already noted above. Though there is a column for grading, petitioner was not given any grading. When the ACR was placed before the accepting authority (Commissioner and Secretary, Soil Conservation Department), he simply remarked that he agreed with the recording and reviewing authorities. 6. Aggrieved, petitioner has filed the present writ petition for quashing of the impugned communication dated 16.9.2010 (Annexure 2 to the writ petition) and for expunging the adverse entry in his ACR for the year 2009-10. Petitioner further seeks a direction to the respondents to consider his case for promotion to the next higher post of Joint Director without taking into account the adverse entry recorded in his ACR for the year 2009-10. 7. Contention of the petitioner is that recording of such adverse entry in his ACR for the year 2009-10 was not justified. When the reporting authority had made the assessment that petitioner is reliable with nothing against his integrity, the reviewing authority could not have made the adverse entry without giving any justification as to why he did not agree with the views of the reporting authority. Petitioner has also alleged bias against the accepting authority. Further contention of the petitioner is that he is eligible for promotion to the next higher post of Joint Director but such adverse entry would cause serious prejudice to the case of the petitioner. WP(C) No. 63l7/2010 8. This petition has been filed by two petitioners, viz., Shri Sibananda Choudhury and Shri Prunaswar Saikia. During the hearing, it was submitted by learned counsel for the petitioners that petitioner No. 2 has retired from service on attaining the age of superannuation. Thereafter, the writ petition is being pursued by petitioner No. l only. Hence, reference would be made to the case of petitioner No. l only as the petitioner. 9. Petitioner is serving as Divisional Soil Conservation Officer in the Soil Conservation Department, Government of Assam. In the gradation list of Divisional Soil Conservation Officers (Divisional Officer hereafter), petitioner is placed at SI. No. 2 and he is second in senior only to Md. ABMT Hussain (respondent No. 4). 10. 9. Petitioner is serving as Divisional Soil Conservation Officer in the Soil Conservation Department, Government of Assam. In the gradation list of Divisional Soil Conservation Officers (Divisional Officer hereafter), petitioner is placed at SI. No. 2 and he is second in senior only to Md. ABMT Hussain (respondent No. 4). 10. Government of Assam in the Soil Conservation Department has framed a set of draft rules called Assam Soil Conservation Department (Recruitment and Promotion to Service) Order, 1988 (‘Order’). Post of Joint Director is a promotional post to be filled up by promotion from the feeder cadre of Divisional Officer. Cadre strength of Joint Director is three and all the three posts, are lying vacant. . 11. On 24.8.2009 a meeting of the Selection Committee was held to consider selection for promotion to the rank of Joint Director from the rank of Divisional Officer. At that point of time, the cadre strength of Joint Director was four, which was subsequently reduced to three. Selection Committee recommended eight numbers of Divisional Officers for promotion to the rank of Joint Director. The first four candidates of the recommended list were all reserve category candidates belonging to Scheduled Caste and Scheduled Tribe (Hills) as they were recommended against backlog vacancies. Further, recommendation of respondent No. 4 at SI. No. 5 was kept in sealed cover in view of pendency of vigilance case against him. Petitioner was recommended at SI. No. 6. 12. The above selection was put to challenge before this court by the petitioner by filing WP(C) No. 4099/2009. The basic challenge made was the recommendation, of four reserve category candidates against all the four vacancies on the ground of there being backlog vacancies. WP(C) No. 4099/2009 was finally disposed of by this court vide the judgment and order dated 29.6.2010 by interfering with the decision of the Selection Committee dated 24.8.2009 in respect of promotion to the rank of Joint Director. The said decision was quashed and the matter was remanded back to the Government to re do the exercise in terms of the directions contained in the said judgment. 13. Without carrying out the exercise as directed by this court in the above judgment, a Selection Committee was again constituted which met on 7.10.2010 to consider selection for promotion to two vacancies in the post of Joint Director for the year 2009 and one vacancy for the year 2010. 13. Without carrying out the exercise as directed by this court in the above judgment, a Selection Committee was again constituted which met on 7.10.2010 to consider selection for promotion to two vacancies in the post of Joint Director for the year 2009 and one vacancy for the year 2010. As against the two vacancies for the year 2009, the Selection Committee recommended respondent No. 5 as a Scheduled Tribe (Hills) [ST(H)] candidate and respondent No. 6 as a Scheduled Caste (SC) candidate by considering the two vacancies to be the 22nd and 23rd points in the roster. According to the Selection Committee, the 22nd roster point is unreserved whereas the 23rd roster point is reserved for SC. As there were backlog vacancies, the Selection Committee decided to fill up the first vacancy by Shri Jiten Malakar (SC). Since the ACR of Shri Jiten Malakar for the year 2009-10 contained adverse remarks, he was not recommended. Consequently, respondent No. 5 was recommended against the said vacancy. Respondent No. 6 was 4. recommended against the next vacancy being an SC candidate. Against the lone vacancy for the year 2010, as there were no reserve category candidates, respondent No. 4, a general category candidate placed at SI. No. l in the zone of consideration, was recommended. 14. Aggrieved, petitioner has filed the present writ petition for quashing the decision of the Selection Committee dated 7.10.2010 and for a direction to the respondents to consider the case of the petitioner for promotion to the post of Joint Director. 15. Contention of the petitioner is that the Selection Committee is to comprise of three members as per order 9 but the Selection Committee which took the decision on 7.10.2010 consisted of four members. Thus, the selection process stood vitiated because of participation of unauthorized person. Further contention is that respondents had erred in proceeding on the basis that the three vacancies in the post of Joint Director which the Selection Committee was considering were the 22nd, 23rd and 24th points in the roster. There cannot be reservation in a cadre consisting of three posts only. Thus the Selection Committee erred in recommending two reserve category candidates, i.e., respondent Nos. 5 and 6 for promotion to the post of Joint Director. There cannot be reservation in a cadre consisting of three posts only. Thus the Selection Committee erred in recommending two reserve category candidates, i.e., respondent Nos. 5 and 6 for promotion to the post of Joint Director. Insofar recommendation of respondent No. 4 is concerned, it is the stand of the petitioner that since a vigilance case is pending against him, sealed cover procedure was required to be followed, which was in fact followed in the previous selection proceeding. That having not been done, recommendation of respondent No. 4 is illegal. Affidavits 16. In WP(C) No. 5673/2010, affidavit has been filed by respondent No. 2 wherein it is stated that adverse entry recorded by the reviewing authority in the ACR of the petitioner for the year 2009-10 is justified. Reference has been made to various schemes of the Soil Conservation Department implemented through the petitioner but it is contended that his performance was found to be far from satisfactory. Not only that, his behaviour and conduct was very poor. It is further stated that petitioner was behind lodging of false public complaints against certain officials of the Department. It is however, admitted that petitioner has submitted an appeal before the Chief Secretary against recording of adverse entry in his ACR. Further stand taken is that the State Government in the Soil Conservation Department has initiated the a process of drawing up a disciplinary proceeding against the petitioner under rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964. In paragraph 14 of the affidavit, it is stated that adverse remarks were recorded by the reviewing authority on the basis of the performance of the petitioner in respect of which enquiry was conducted and enquiry report submitted. Allegation of bias against respondent No. 5 has been denied. Departmental Selection Committee held a meeting on 7.10.2010 to consider promotion from Divisional Officer to Joint Director in terms of order of this court dated 29-06-2010 passed in WP(C) No. 4099/2009. 17. Petitioner has filed a detailed reply affidavit controverting the c contentions of respondent No. 2 that his performance and behaviour were very poor. He has given details of his performance in the implementation of various schemes to contend the contrary. 17. Petitioner has filed a detailed reply affidavit controverting the c contentions of respondent No. 2 that his performance and behaviour were very poor. He has given details of his performance in the implementation of various schemes to contend the contrary. Referring to the provisions of Assam Services (Confidential Rolls) Rules, 1990 he contends that if the reviewing and accepting authority disagree with the assessment of the reporting authority, reasons must be recorded in writing for such disagreement. In the instant case, no reasons were recorded when the reviewing authority disagreed with the assessment of the reporting authority and recorded adverse entry. Since petitioner was not given any opportunity to have his say in the recording of adverse entry in his ACR, the same could not have been taken into account by the Selection Committee. 18. An additional affidavit has been filed by the petitioner after filing of the reply affidavit. It is stated that a show-cause notice dated 9.5.2011 was issued to the petitioner under rule 7 of the Assam Services (Discipline and Appeal) Rules, 1964 on the allegations referred to in the counter affidavit. Enquiry was conducted to enquire into the charges leveled against the petitioner. The Enquiry Officer in his enquiry report dated 27.6.2013 held that the charges were not proved. Thereafter, the disciplinary authority issued notification dated 20.7.2013 closing the disciplinary proceeding drawn up against the petitioner. Petitioner contends that since the basis of the adverse entry in his ACR and initiation of disciplinary proceeding against him were the same, closure of the disciplinary proceeding should lead to erasement of such adverse entry as the latter has become non est in the eye of law. In such circumstances, respondents should hold a review DPC to reconsider the case of the petitioner for promotion to the rank of Joint Director. 19. In WP(C) No. 6317/2010, an affidavit has been filed by respondent No. l. It is stated that three posts of Joint Director are now vacant. Selection Committee was constituted to consider promotion from Divisional Officer to Joint Director as per provisions of draft order in the absence of any service rules. It is stated that earlier Selection Committee had recommended four candidates for promotion to Joint Director, all belonging to reserve category, since at that time the cadre strength of Joint Director was four which has since been reduced to three. It is stated that earlier Selection Committee had recommended four candidates for promotion to Joint Director, all belonging to reserve category, since at that time the cadre strength of Joint Director was four which has since been reduced to three. The above selection was set aside by this court vide judgment and order dated 29.6.2010 passed in WP(C) No. 4099/2009 with a direction to reconsider the same within three months. As per direction of this court, Selection Committee held its meeting on 7.10.2010. It is stated that for the year 2009 there were two vacancies and for the year 2010 there was one vacancy. The Selection Committee observed that there were backlog vacancies of reserve category. Though name of Shri Jiten Malakar, an SC candidate [petitioner in WP(C) No. 5673/2010] was considered, because of adverse remark in his ACR for the year 2009-10, he was not found suitable. Accordingly, respondent No. 5, an ST(H) candidate, and respondent No. 6, an SC candidate, were recommended. Against the lone vacancy for the year 2010, respondent No. 4 who was placed at SI. No. l in the zone of consideration and as there were no reserve category candidates, he was recommended. Selection Committee took note of the fact that though a vigilance case was pending against respondent No. 4 but no prosecution sanction had been granted. 20. Respondent No. 4 has also filed affidavit He has stated that he is the senior most Divisional Officer as per final gradation list. For the year 2010 there was only one vacancy in the rank of Joint Director. There were four officers within the zone of consideration with the respondent No. 4 in the first position and the petitioner in the second position. There were no reserve category candidates within the zone of consideration. Selection Committee, therefore, recommended respondent No. 4 for promotion to the vacant post of Joint Director. As per the minutes of the Selection Committee meeting, though there was a vigilance case pending against the respondent No. 4 as intimated by the Political (Vigilance) Department, Government of Assam, no prosecution sanction had been granted. Therefore, there was no bar for recommendation of respondent No. 4. As per the minutes of the Selection Committee meeting, though there was a vigilance case pending against the respondent No. 4 as intimated by the Political (Vigilance) Department, Government of Assam, no prosecution sanction had been granted. Therefore, there was no bar for recommendation of respondent No. 4. Regarding presence of four members in the Selection Committee as against three in terms of the service Order, it is stated that no dissenting views were expressed by any of the members and, therefore, participation of an additional member in the proceedings of the Selection Committee did not have any adverse bearing on the recommendation. Court order 21. In WP(C) No. 5673/2010, this court by order dated 7.10.2010 had issued notice and as an interim measure directed that the process of selection for filling up the post of Joint Director may continue but the said post should not be filled up without the leave of the court. Submissions 22. Mr. S. Sarma, learned counsel for the petitioner in WP(C) No. 5673/ 2010 submitted that as has been held by the Apex Court, purpose of recording adverse entry in the service record of a Government servant is two-fold. Firstly, it is to warn the Government servant about his performance and conduct as assessed by the authority. Secondly, it is meant to motivate the Government servant to improve his performance. It is to achieve the twin purpose that the adverse entry must be communicated to the petitioner and he should be given an opportunity to submit a representation against recording of such adverse entry. Coming to the facts of the present case, learned counsel for the petitioner submits that without considering the appeal of the petitioner against recording of adverse entry, his case was placed before the Selection Committee which rejected his candidature for promotion to the post of Joint Director in view of such adverse entry. He further submits that the basis of recording the adverse entry and drawal of disciplinary proceeding against the petitioner were the same set of allegations. Since Enquiry Officer had held that the charges framed against the petitioner were not proved and the disciplinary authority having accepted the enquiry report and closed the disciplinary proceeding drawn up against the petitioner, the adverse entry recorded in the ACR of the petitioner for the year 2009-10 must be taken to have been wiped out. Since Enquiry Officer had held that the charges framed against the petitioner were not proved and the disciplinary authority having accepted the enquiry report and closed the disciplinary proceeding drawn up against the petitioner, the adverse entry recorded in the ACR of the petitioner for the year 2009-10 must be taken to have been wiped out. In this connection, learned counsel refers to and relies upon the decision of the Apex Court in the case of Chabungham Ibohal Singh v. Union of India, 1995 Supp.(2) SCC 83. He, therefore, submits that authorities may be directed to hold review DPC to consider promotion to the post of Joint Director after expunging the adverse entry recorded in the ACR of the petitioner for the year 2009-10. 23. Mr. S.K. Ghosh, learned counsel for the petitioner in WP(C) No. 6317/ 2010 submitted that the Selection Committee which made the impugned recommendation on 7.10.2010 comprised of four members which was beyond the prescribed number as per order 9. Participation of such an unauthorized person in the proceedings of the Selection Committee vitiated the recommendations made. His further submission is that there was excess reservation for reserve category candidates. As a matter of fact there cannot be reservation to a post where the total cadre strength is four or less. Therefore, recommendation of respondent Nos. 5 and 6 for promotion to the post of Joint Director where the total cadre strength is three is illegal. In support of this submission, learned Counsel for the petitioner has placed reliance in a decision of this court in the case of Khanindra Nath Choudhury v. State of Assam and Others, 2007 (4) GLT 587. His last submission is that respondent No. 4 could not have been recommended for promotion as there is a vigilance case pending against him. Therefore, as was done in the previous Selection Committee meeting, sealed cover procedure ought to have been followed in the case of respondent No. 4 during the impugned Selection Committee proceeding. 24. Mr. K.H. Choudhury, learned senior counsel appearing for respondent No. 4 in WP(C) No. 6317/2010 submitted that his client is the senior most in the cadre of Divisional Officer. Though a Departmental Proceeding was initiated against him, he was exonerated from the charges on 14.11.2002. 24. Mr. K.H. Choudhury, learned senior counsel appearing for respondent No. 4 in WP(C) No. 6317/2010 submitted that his client is the senior most in the cadre of Divisional Officer. Though a Departmental Proceeding was initiated against him, he was exonerated from the charges on 14.11.2002. On the day the Selection Committee considered his case for promotion, sanction had not been granted for prosecution of respondent No. 4 in the vigilance case. Though he fairly admitted that prosecution sanction was subsequently granted in the year 2012, selection of respondent No. 4 would have to be judged on the basis of materials which existed on the day of selection. 25. Mr. G. Uzir, learned counsel for respondent No. 5 also fairly submitted that though respondent No. 5 was recommended for promotion to the post of Joint Director against backlog vacancy of ST(H), he has no objection to promotion of the petitioner. He further submits that respondent No. 5 is also not averse to a fresh selection in which case the vacancies should be notified, giving breakup of the categories, whether general or reserve. 26. Learned Standing Counsel for the Soil Conservation Department supports the action taken by the respondents against the petitioner in WP(C) No. 5673/2010 as well as the proceedings of the Selection Committee dated 7.10.2010, which is impugned in WP(C) No. 6317/2010. Discussions and Conclusion 27. Submissions made have been considered. 28. Since the out come of WP(C) No. 5673/2010 may have a bearing on WP(C) No. 6317/2010, WP(C) No. 5673/2010 is taken up first for consideration. 29. The law relating to recording of adverse entry in the confidential reports of a Government servant has by now crystallized. This issue was gone into in detail by the Supreme Court in Dev Dutt v. Union of India and Others, (2008) 8 SCC 725 , which has been affirmed by a larger bench in a subsequent case. It was held that every entry in the ACR of a public servant must be communicated to him within a reasonable period. When the entry is communicated to the public servant, he should have a right to make a representation against the entry which must be decided in a fair manner and within a reasonable period. It was held that every entry in the ACR of a public servant must be communicated to him within a reasonable period. When the entry is communicated to the public servant, he should have a right to make a representation against the entry which must be decided in a fair manner and within a reasonable period. The Apex Court further held that in the interest of fairness and transparency, the representation so submitted should be decided by an authority higher than the one who gave the entry. It was held, thus: “(17) In our opinion, every entry in the ACR 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 v. Union of India that arbitrariness violates article 14 of the Constitution. (37) We further hold that when the entry is communicated to him the public servant should have a right to make a representation against the entry to the authority concerned, and the authority concerned must decide the representation in a fair manner and within a reasonable period. We also hold that the representation must be decided by an authority higher than the one who gave the entry, otherwise the likelihood is that the representation will be summarily rejected without adequate consideration as it would be an appeal from Caesar to Caesar. All this would be conducive to fairness and e transparency in public administration, and would result in fairness to public servants. The State must be a model employer, and must act fairly towards the employees. Only then would good governance be possible.” 30. Having noticed the above, we may now turn to the facts of the present case. All this would be conducive to fairness and e transparency in public administration, and would result in fairness to public servants. The State must be a model employer, and must act fairly towards the employees. Only then would good governance be possible.” 30. Having noticed the above, we may now turn to the facts of the present case. From a perusal of the ACR of the petitioner for the year 2009-10, it is seen that the reporting authority recorded against the column character with particulars to reliability and integrity as “reliable, nothing against his integrity”. The reviewing authority however, recorded the remark “doubtful integrity, unruly, abusive behaviour and miscounduct and can’t be recommended for higher post”. Thus, it is quite evident 8 that the reviewing authority had disagreed with the assessment of the reporting authority but no reason or justification has been cited for such disagreement. Moreover, though there is a column for giving grading, the reviewing authority did not give any grading to the petitioner. When the ACR was placed before the accepting authority, he simply stated “agreed with recording and reviewing officers”. The assessment of the reporting (recording) and reviewing authorities being divergent, with the reviewing authority disagreeing with the assessment of the reporting authority, the accepting authority could not have agreed with the assessment of both the reporting (recording) officer and the reviewing officer. This reflects non-application of mind by the accepting authority. It is further on record that petitioner had submitted an appeal dated 1.10.2010 before the Chief Secretary to the Government of Assam against the adverse entry recorded in his ACR for the year 2009-10. Following the decision in Dev Dutt (supra), the appeal was rightly made before the Chief Secretary being an authority higher than the reviewing and accepting authorities. But the said authority was required to dispose of the appeal in a fair manner and within a reasonable period. More than three years have passed since the petitioner had submitted his appeal but the State respondents could not place any material before the court to show that the said appeal of the petitioner was attended to by the Chief Secretary and decision taken thereon. 31. More than three years have passed since the petitioner had submitted his appeal but the State respondents could not place any material before the court to show that the said appeal of the petitioner was attended to by the Chief Secretary and decision taken thereon. 31. Thus, in the facts and circumstances of the case, court is of the view that it would meet the ends of justice if the Chief Secretary to the Government of Assam takes a decision on the appeal filed by the petitioner on 1.10.2010 against recording of adverse entry in his ACR for the year 2009-10 within a period of two months from the date of receipt of a copy of this order. The Selection Committee should be reconvened within a period of one month from the date of the decision of the Chief Secretary and whatever decision is arrived at by the Chief Secretary, the same should be communicated to the petitioner as well as to the Selection Committee who shall thereafter consider the cases of all eligible Divisional Officers coming within the zone of consideration for promotion to the rank of Joint Director. 32. Ordered accordingly. Consequently, proceedings of the Selection Committee dated 7.10.2010 are quashed. 33. In view of the decision rendered in WP(C) No. 5673/2010 as above, the court is of the view that no decision on merit is called for in WP(C) No. 6317/2010 save and accept that the fresh Selection Committee shall consider the cases of all the eligible candidates strictly in accordance with law within the period prescribed. 34. Both the writ petitions are accordingly disposed of. 35. No cost.