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2014 DIGILAW 71 (MEG)

Bikash Paul Choudhury v. State Of Meghalaya

2014-04-17

T.NANDAKUMAR SINGH

body2014
JUDGMENT : T. Nandakumar Singh, J. 1. By this writ petition, the petitioner is assailing the findings/proceedings of the Review Departmental Promotion Committee (for short 'DPC') held on 26.09.2012, which was communicated to the petitioner vide letter dated 07.12.2012 (Annexure-6 to the writ petition). This is the fourth time the petitioner is knocking the door of the temple of justice for the same subject matter i.e. denial of promotion to the petitioner to the post of Executive Engineer basing on the adverse entries in his ACRs, which were not communicated to the petitioner. The earlier writ petitions were in respect of the adverse entries in the ACRs of the petitioner for the years 1993 and 1994, which had been later on expunged by the competent authority. The present case relates with the adverse entry in the ACR of the petitioner for the year 1991, which was not communicated to the petitioner and also the said ACR of the petitioner for the year 1991 which contained un-communicated adverse entry had been considered or used by the Review DPC held on 26.09.2012 (matter in issue in the present writ petition). 2. Heard Mr. M. Chanda, learned counsel for the petitioner and Mr. S. Sen Gupta, learned GA appearing for the respondents. 3. Factual background:-- "The petitioner filed the first writ petition i.e. W.P. (C) No. 229(SH) 2004 assailing the non-promotion of the petitioner to the post of Executive Engineer in the years 1995, 1996 and 1998 where his juniors had been promoted in those years, on the ground that the adverse entries in the ACRs of the petitioner for the years 1993 and 1994, which were not communicated to the petitioner had been considered by the DPC; and as a result, the petitioner had not been recommended for promotion to the post of Executive Engineer in the years 1995, 1996 and 1998 respectively. The learned Court had allowed the writ petition vide judgment and order dated 02.09.2009 that the un-communicated adverse entries in the ACRs of the petitioner for the years 1993 and 1994, had been used and acted upon by the DPC for considering the case of the petitioner for promotion to the post of Executive Engineer for the years 1995 and 1996 and also that the competent authority had not considered and decided the reply/representation dated 02.08.1995 filed by the petitioner with regard to the adverse entries recorded in the ACRs for the years 1993 and 1994; and in that context, the Court had directed the respondents (i) first to consider the reply/representation dated 02.08.1995 filed by the petitioner with regard to the adverse entries recorded in the ACRs for the years 1993 and 1994 and (ii) once the adverse entry issue i.e. adverse entries recorded in the ACRs of the petitioner for the years 1993 and 1994 is resolved by the appropriate authority, the respondents would constitute a Review DPC as on June, 1995 to consider the petitioner for promotion. If the petitioner is not recommended for the year 1995, his case should again be considered as on 04.09.1996 and 16.06.1997 respectively, when the earlier DPC considered for promotion for the years 1996 and 1998. In the event of positive recommendation of the DPC, the State would take the requisite steps so that the petitioner is able to get consequential service benefits such as promotion from an earlier date." 4. It appears that pursuant to the order and directions of the Court dated 02.09.2009 passed in W.P. (C) No. 229(SH) 2004, there was a Review DPC held on 12.03.2010. It appears from the record that in the said Review DPC i.e. 12.03.2010, the adverse entries in the ACRs of the petitioner for the years 1993 and 1994 had been considered inspite of the fact that the adverse entries in the said years i.e. for the years 1993 and 1994 had been expunged later on. Because of the said mistake in the said Review DPC, the petitioner was not recommended for promotion to the post of Executive Engineer for the years 1995 and1996, but the petitioner was recommended for promotion to the post of Executive Engineer for the year 1997 w.e.f. 04.02.1997. Because of the said mistake in the said Review DPC, the petitioner was not recommended for promotion to the post of Executive Engineer for the years 1995 and1996, but the petitioner was recommended for promotion to the post of Executive Engineer for the year 1997 w.e.f. 04.02.1997. Pursuant to the said recommendation of the Review DPC for promoting the petitioner to the post of Executive Engineer for the year 1997 w.e.f. 04.02.1997, the petitioner had been promoted to the post of Engineer vide Notification dated 03.06.2010 w.e.f. 04.02.1997. The petitioner being aggrieved by the said portion of the said Review DPC held on 12.03.2010 for non-considering the petitioner for promotion to the post of Executive Engineer in the years 1995 and 1996 basing on the original ACRs of the years 1993 and 1994 which contained the adverse entries, even if the adverse entries had been expunged, filed writ petition i.e. W.P. (C) No. (SH) 242 of 2010. The Court again vide judgment and order dated 25.10.2011, had allowed the writ petition with a directions to the respondents to consider the case of the petitioner for promotion to the post of Executive Engineer for the years 1995 and 1996 basing on the corrected ACRs of the petitioner for the years 1993 and 1994 inasmuch as, the adverse entries in the said two years had already been corrected by expunging the adverse entries. 5. The State respondents had filed intra-Court appeal i.e. W.A. No. (SH) No. 6 of 2012 against the judgment and order of the learned Single Judge dated 25.10.2011 passed in W.P. (C) No. (SH) 242 of 2010. The learned Division Bench disposed of the W.A. No. (SH) 6 of 2012 vide judgment and order dated 06.07.2012 with the observations and directions that "as could be seen from the records of the case and also reflected in paragraph No. 4 of the judgment and order of the learned Single Judge dated 25.10.2011 passed in W.P. (C)(SH) No. 242 of 2010, the authorities had expunged the adverse remarks in the petitioner's ACRs of the years 1993 and 1994 vide Office Order dated 18.02.2010. However, on perusal of the ACRs which have been produced today which were relied upon by the Review DPC as stated by the learned Advocate General, Meghalaya it is seen that there is no entry in the ACRs of the petitioner that such adverse remarks have been expunged. However, on perusal of the ACRs which have been produced today which were relied upon by the Review DPC as stated by the learned Advocate General, Meghalaya it is seen that there is no entry in the ACRs of the petitioner that such adverse remarks have been expunged. In other words, the review DPC considered the old ACRs of the petitioner with the adverse remarks, in the review DPC meeting held on 12.03.2010. Learned Advocate General, Meghalaya has produced other official records to show the performance and suitability of the petitioner. However, the minutes of the review DPC produced by the appellant does not refer to any such record. In any event, it is doubtful if the review DPC could have taken into consideration such records which are not reflected in the ACRs of the concerned officer. Having found that the aforesaid review DPC was held on 12.03.2010 on the basis of the ACRs without the expunged adverse remarks, we are of the view that the consideration of the aforesaid ACRs with the adverse remarks has vitiated the entire review DPC proceeding as far as the review DPC for the years 1995 and 1996 are concerned. Therefore, the review DPC which was held on 12.03.2010 as far as the recommendation in respect of the years 1995 and 1996 are liable to be interfered with which we do so. Accordingly, the authorities would be required to reconsider the promotion of the petitioner as on June, 1995 and 1996 as directed by this Court earlier in W.P. (C) (SH) No. 229 of 2004 afresh on the basis of the ACRs of the petitioner without the adverse remarks which are stated to have been expunged. It is also made clear that in the event, the petitioner is found suitable for promotion to the post of Executive Engineer as on 04.09.1996 or 16.06.1997 as the case may be, he will be given promotion with retrospective effect from the said date with consequential benefits as directed by this Court in W.P. (C)(SH) No. 229 of 2004. It is made clear that the authorities had already found the petitioner fit for promotion from the year 1997 and as such, the aforesaid recommendation of the review DPC would remain undisturbed. It is made clear that the authorities had already found the petitioner fit for promotion from the year 1997 and as such, the aforesaid recommendation of the review DPC would remain undisturbed. In view of the above, the authorities are directed to make necessary correction in the ACRs of the petitioner for the years 1993 and 1994 by expunging the adverse remarks and thereafter hold another review DPC to reconsider the claim of the petitioner for promotion to the post of Executive Engineer for the year 1995 and for subsequent year, if necessary, and give consequential benefits as directed earlier by this Court on 2.9.2009 in W.P. (C) (SH) No. 229 of 2004. The whole exercise will be completed within a period of three months. The Judgment and Order of the learned Single Judge dated 25.10.2011 passed in W.P. (C) No. (SH) 242 of 2010 is modified to the extent as indicated above. With the above observation and direction, the present appeal is disposed of." 6. In pursuance to the directions of the Division Bench in the Judgment and Order dated 06.07.2012 passed in W.A. No. (SH) 6/2012, again review DPC (impugned review DPC) was held on 26.09.2012. The petitioner is aggrieved by the proceedings and findings of the review DPC held on 26.09.2012 i.e. paras i and ii of the review DPC, which read as follows:-- "i. Re-consideration of promotion as on June 1995: The ACRs of Shri. B. Paul Choudhury for the period of five years i.e. 1990, 1991, 1992, 1993 (Adverse Remarks expunged), 1994 (Adverse Remarks expunged), were placed before the Committee. The Committee perused the ACRs and observed that the overall performance were not good enough to consider the Officer for promotion in the year 1995 when the 1st DPC sat on 16.08.1995 and on 02.09.95. It was also noted that where the ACRs for the year 1990 was not available because the Officer was on study leave, but the ACR for 1991 contained remarks that initiative and drive was not upto the mark". Further, it was seen that another Officer namely S.R. Barua was also not considered suitable for promotion because of similar reasons. The Committee, therefore, decided not to consider his promotion from 1995. ii. Further, it was seen that another Officer namely S.R. Barua was also not considered suitable for promotion because of similar reasons. The Committee, therefore, decided not to consider his promotion from 1995. ii. Re-consideration of promotion as on June 1996: The ACRs of Shri. B. Paul Choudhury for the year 1991, 1992, 1993 (Adverse Remarks expunged) 1994 (Adverse Remarks expunged), and 1995 were placed before the Committee. The Committee perused the ACRs and observed that as per ACRs, the Officer was yet to improve his overall performance. It was noted that the Officer's ACR for 1991 contained remarks as indicated above, that the Officer "Initiative and drive were not upto the mark". The Committee, therefore, decided not to consider the promotion of the Officer to the rank of Executive Engineer from the year 1996 also." 7. On bare perusal of Paras i and ii of the proceedings of the impugned review DPC dated 26.09.2012, it is clear that the petitioner was not considered for promotion for the years 1995 and 1996 because of the adverse entry in the ACR of the petitioner for the year 1991 which contained the adverse remarks "initiative and drive was not upto the mark" and also the ACR of the petitioner for the year 1990 is not available. In the Para 11 of the writ petition, the petitioner had categorically pleaded that the review DPC was held merely in a casual manner and observed that the ACR of the petitioner for the year 1990 was not available and the ACR of 1991 contained un-communicated adverse remarks that "initiative and drive was not upto the mark" and the Review DPC considered the said ACR of 1991 of the petitioner which contained the said un-communicated adverse remarks for promotion for the year 1995. It is the further case of the petitioner pleaded categorically in the said para 11 that the said remarks i.e. the adverse entry in the ACR of the petitioner for the year 1991 was never communicated to the petitioner at any point of time and the review DPC held on 26.09.2012 should not have considered the ACR of the petitioner for the year 1991 which contained the un-communicated adverse remarks. 8. 8. The respondents filed affidavit-in-opposition and in Para 8 of the affidavit-in-opposition, which is the reply of the respondents to the statements or pleaded case of the petitioner in Para 11 of the writ petition, had not denied that the adverse entry in the ACR of the petitioner for the year 1991 was not communicated to the petitioner at any point of time. It is well settled in the service jurisprudence that the adverse entry which is not communicated to the employee cannot be considered by the DPC or the concerned authority at the time of consideration of that employee for further promotion. The Gauhati High Court (Mr. Justice T. Nandakumar Singh, as then he was) in Arun Roy Vs. Union of India and Others, (2012) 3 GLD 276 : (2012) 3 GLT 406 held that:-- "10. It is further case of the petitioner, which is substantiated by the record, that the DPC deliberately acted upon the incomplete and downgraded ACR of the petitioner for the years 1998 and 1999-2000 and also that the DPC had acted upon the said adverse entry/adverse un-communicated note attached to the ACR of the petitioner and also the respondents had admitted in their joint affidavit that DPC held on 13.03.2001 had acted upon the said un-communicated adverse note attached to the ACR of the petitioner and also that said A. Sarkar the then Director, who had placed the Secret Note before the DPC in respect of the petitioner was also a member of the DPC held on 13.03.2001 and review DPC held on 16.04.2001. 11. It is now well settled dictum in service jurisprudence that an un-communicated adverse report should not form the foundation and also that any adverse entry need to be communicated to the incumbent i.e. to the government servant. Any adverse entry which would have civil consequences should be communicated to the concerned employee and non communication of the adverse entries, not only deprive the employee of the opportunity of making a representation against it but also would affect all his chance of being promoted. Hence, such non communication is arbitrary and violative of Article 14 of the Constitution. [Ref. Union of India Vs. Shri Rati Pal Saroj and Another, AIR 1998 SC 1117 . 16. The Apex Court in Dev Dutt Vs. Hence, such non communication is arbitrary and violative of Article 14 of the Constitution. [Ref. Union of India Vs. Shri Rati Pal Saroj and Another, AIR 1998 SC 1117 . 16. The Apex Court in Dev Dutt Vs. Union of India (UOI) and Others, held that adverse entry or/remark should be communicated to the employee inasmuch as communication of entries and giving opportunity to represent against them is particularly important on higher posts which are in a pyramidical structure where often principle of elimination is followed in selection for promotion and even a single entry can destroy career of an officer which has otherwise been outstanding throughout. Para- 33, 34, 35, 36, 37, 38, 39 and 40 of the SCC in Dev Dutt's case (supra) read as follows: "33. In our opinion, fair play required that the respondent should have communicated the 'good' entry of 1993-1994 to the appellant so that he could have an opportunity of making a representation praying for upgrading the same so that he could be eligible for promotion. Noncommunication of the said entry, in our opinion, was hence unfair on the part of the respondent and hence violative of natural justice. 34. Originally there were said to be only two principles of natural justice: (1) the rule against bias and (two-third) the right to be heard (audi alteram partem). However, subsequently, as noted in A.K. Kraipak and Others Vs. Union of India (UOI) and Others, AIR 1970 SC 150 and K.I. Shephard case: (1987) 4 SCC 431 , some more rules came to be added to the rules of natural justice, e.g. the requirement to give reasons vide S.N. Mukherjee Vs. Union of India, AIR 1990 SC 1984 . In Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, AIR 1978 SC 597 it was held that natural justice is part of Article 14 of the Constitution). 35. Thus natural justice has an expanding content and is not stagnant. It is therefore open to the court to develop new principles of natural justice in appropriate cases. 36. In Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, AIR 1978 SC 597 it was held that natural justice is part of Article 14 of the Constitution). 35. Thus natural justice has an expanding content and is not stagnant. It is therefore open to the court to develop new principles of natural justice in appropriate cases. 36. In the present case, we are developing the principles of natural justice by holding 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 (except the military), must be communicated to him within a reasonable period so that he can make a representation for its upgradation. This in our opinion is the correct legal position even though there may be no rule/G.O. requires communication of the entry, or even if there is a rule/G.O. prohibiting it, because the principle of non-arbitrariness in State action as envisaged by Article 14 of the Constitution in our opinion requires such communication. Article 14 will override all rules or requires such communication. Article 14 will override all rules or government orders. 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 conductive to fairness and transparency in public administration, and would result in fairness to public servants. The State must be a model employer, and must act fairly towards its employees. Only then would good governance be possible. 38. In Canara Bank Vs. V.K. Awasthy, AIR 2005 SC 2090 this Court held that the concept of natural justice has undergone a great deal of change in recent years. As observed in para 8 of the said judgment "8. Natural justice is another name for common-sense justice. Rules of natural justice are not codified canons. 38. In Canara Bank Vs. V.K. Awasthy, AIR 2005 SC 2090 this Court held that the concept of natural justice has undergone a great deal of change in recent years. As observed in para 8 of the said judgment "8. Natural justice is another name for common-sense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a common-sense liberal way. Justice is based substantially on natural ideals and human values." In para 12 of the said judgment it was observed: "12. What is meant by the term 'principles of natural justice' is not easy to determine. Lord Summer (then Hamilton, L.J.) in R v Loc, Govt. Board: (1914) 1 KB 160 described the phrase as sadly lacking in precision. In General Medical Council v Spackman: 1943. According to the petitioner 627, Lord Wright observed that it was not desirable to attempt 'to force it into any Procrustean bed." 40. In State of Maharashtra Vs. Public Concern for Governance Trust and Others, (2007) AIRSCW 474 it was observed: "39. ...In our opinion, when an authority takes a decision which may have civil consequences and affects the rights of a person, the principles of natural justice would at once come into play." 17. The ratio laid down in Dev Dutt's case (supra) had been later on followed by the Apex Court (3 Judges) in Abhijit Ghosh Dastidar Vs. Union of India (UOI) and Others, (2009) 16 SCC 146 and reiterated that non communication of the entries in the annual confidential report of a public servant whether he is in civil, judicial, police or any other service (other than armed force), it has civil consequences because it may affect his chance of promotion or getting other benefits. Para 8 of the SCC in Abhijit Ghosh Dastidar's case read as follows: "8 Coming to the second aspect, that though the benchmark "very good" is required for being considered for promotion, admittedly the entry of "good" was not communicated to the appellant. The entry of "good" should have been communicated to him as he was having "very good" in the previous year. The entry of "good" should have been communicated to him as he was having "very good" in the previous year. In those circumstances, in our opinion, non-communication of entries in the annual confidential report of a public servant whether he is in civil, judicial, police or any other service (other than the armed forces), it has civil consequences because it may affect his chances of promotion or getting other benefits. Hence, such non-communication would be arbitrary, and as such violative of 'Article 14 of the Constitution. The same view has been reiterated in the above referred decision Dev Dutt Vs. Union of India (UOI) and Others, (2008) 8 SCC 725 relied on by the appellant. Therefore, the entries "good" if at all granted to the appellant the same should not have been taken into consideration for being considered for promotion to the higher grade. The respondent has no case that the appellant had ever been informed of the nature of the grading given to him." 21. For the foregoing discussions, in the given case, the said action of the respondents are arbitrary, discriminatory and malafide. On perusal of the records, it is clear that incomplete ACR of the petitioner had been acted upon by the DPC. For the incomplete ACR, DPC may refer to the G.I., Dept. of Per & Trg. O.M. No. 22011/5/86-Estt.(D), dated the 20th June, 1989 and Corrigendum, dated the 13th July, 1989, which is reproduced in Swamy's Establishment and Administration compilation, as under: "if two alternative eligibility conditions are prescribed and the officers satisfying these conditions are considered simultaneously instead of under a "failing which" clause, the DPC may consider the service record of all officers with particular reference to the ACRs (including ACRs in respect of service in the lower grade, if necessary) for the lesser number of years as between the two alternative periods of eligibility service or five years, whichever is longer To cite an instance, if for promotion to a post in the scale of Rs. 5,900-6,700, it is prescribed in the Rules and Regulations that officers with 8 years' service in the scale of Rs. 3,700-5,000 or those with 17 years' service in Group 'A' including four years service in the scale of Rs. 5,900-6,700, it is prescribed in the Rules and Regulations that officers with 8 years' service in the scale of Rs. 3,700-5,000 or those with 17 years' service in Group 'A' including four years service in the scale of Rs. 3,700-5,000 are eligible, the DPC may consider the service record of all officers with particular reference to the ACRs for 8 years (including Annual Confidential Report for service in the lower grade, if necessary." (c) Where one or more CRs have not been written for any reason during the relevant period, the DPC should consider the CRs of the years preceding the period in question and if in any case even these are not available, the DPC should take the CRs of the lower grade into account to complete the number of CRs required to be considered as per (b) above. If this is also not possible, all the available CRs should be taken into account. (d) Where an officer is officiating in the next higher grade and has earned CRs in that grade, his CRs in that grade may be considered by the DPC in order to assess his work, conduct and performance, but no extra weightage may be given merely on the ground that he has been officiating in the higher grade. (e) The DPC should not be guided merely by the overall grading, if any, that may be recorded in the CRs but should make its own assessment on the basis of the entries in the CRs, because it has been noticed that sometimes the overall grading in a CR may be inconsistent with the grading under various parameters or attributes. (f) If the Reviewing Authority or the Accepting Authority, as the case may be, has overruled the Reporting Officer or the Reviewing Authority, as the case may be, the remarks of the latter authority should be taken as the final remarks for the purposes of assessment, provided it is apparent from the relevant entries that the higher authority has come to a different assessment consciously after due application of mind. If the remarks of the Reporting Officer, Reviewing Authority and Accepting Authority are complementary to each other and one does not have the effect of overruling the other, then the remarks should be read together and the final assessment made by the DPC." 9. If the remarks of the Reporting Officer, Reviewing Authority and Accepting Authority are complementary to each other and one does not have the effect of overruling the other, then the remarks should be read together and the final assessment made by the DPC." 9. In case the ACR of the petitioner for the year 1990 is not available, the ACR of the preceding year should be taken into consideration. In other words, if the ACR for the year 1990 is not available, the ACR of the petitioner for the year 1989 shall be taken into consideration. 10. In the above factual backdrop, this Court has to again direct (i) the respondents, who know quite well that an un-communicated adverse entry in the ACR cannot be used for consideration of the concerned employee for promotion, to communicate the adverse entry in the ACR of the petitioner for the year 1991 to the petitioner so as to enable him to file reply/representation; (ii) the reply/representation so filed by him should be appropriately dealt with and; (iii) after the matter of adverse entry in the ACR of the petitioner for the year 1991 is resolved, the respondents shall take up follow up action i.e. again holding the Review DPC for the years 1995 and 1996 within a period of two months from the date of receipt of a certified copy of this judgment and order. 11. Taking into consideration of the hard fact that the respondents, who know quite well that an un-communicated adverse entry in the ACR of the petitioner for the year 1991 cannot be used for consideration of the petitioner's promotion for the years 1995 and 1996, had deliberately based on the said adverse entry in the Review DPC held on 26.09.2012, this Court is of the considered view that an exemplary cost is called for. One whosoever high and exalted is not above the law. Rule of law prevalent even in the war. Accordingly, an exemplary cost of Rs. 10,000/- (Rupees ten thousand) only is imposed to the respondents for deliberately used the un-communicated adverse entry. The said cost of Rs. 10,000/- (Rupees ten thousand) only should be deposited in the fund of the High Court Bar Association, Meghalaya, Shillong within a period of two months so that it can be used for extending legal services to the economically backward sections of the society. 12. The said cost of Rs. 10,000/- (Rupees ten thousand) only should be deposited in the fund of the High Court Bar Association, Meghalaya, Shillong within a period of two months so that it can be used for extending legal services to the economically backward sections of the society. 12. With the above observations and directions, this writ petition is allowed.