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2015 DIGILAW 1216 (GAU)

Indrajit Bora v. State of Assam

2015-09-21

UJJAL BHUYAN

body2015
JUDGMENT : Heard Mr. U.K. Nair, learned counsel for the petitioner and Ms. B. Bhuyan, learned Standing Counsel, PWD (Roads). Also heard Mr. Y.S. Mannan, learned Standing Counsel, PWD (Building & NH). Matter relates to promotion from Assistant Executive Engineer (Civil) to Executive Engineer (Civil) in the Public Works Department (PWD), Assam. Selection Board in its meeting held on 05.02.2014 considered 16 vacancies for the calendar year 2013 for which the zone of consideration was 64 officers in the rank of Assistant Executive Engineer (Civil). Petitioner’s position in the gradation list of Assistant Executive Engineer (Civil) is at Sl. No. 46. Therefore, he was included in the zone of consideration. However, the Selection Board while considering the case of the petitioner observed that in the ACR for the period from 2010-2011, though the grading given was “very good”, the word “very” was found outside the specified space, therefore drawing an interference that the word “very” was added at a later point of time. Selection Board decided to consider the grading in the ACR of the petitioner for the period 2010-2011 as “good” instead of “very good”. This had an adverse impact on the promotional prospect of the petitioner as would be evident from the succeeding paragraphs. Ultimately, petitioner was not recommended for which present writ petition has been filed. As per the scheme in place, promotion from Assistant Executive Engineer to Executive Engineer is on the basis of merit and suitability with due regard to seniority. PWD has issued detailed guidelines assigning marks for merit as well as for seniority. On the basis of marks, two grades have been created. Those securing 21.3 and above are placed in Grade-A and those securing less than 21.3 are placed in Grade-B. Preference is given to those placed in Grade-A for promotion. Marks allotted for the seniority component is not under dispute. Therefore, the same is not commented upon. For determining merit, marks are allotted on the basis of gradings given in the ACRs. ACRs of five immediately preceding years are taken into consideration. Marks allotted for the seniority component is not under dispute. Therefore, the same is not commented upon. For determining merit, marks are allotted on the basis of gradings given in the ACRs. ACRs of five immediately preceding years are taken into consideration. Marks are awarded as under:- Outstanding 4 Very Good 3 Good 2 Average 1 Below Average 0 From the statement of ACR gradings and corresponding marks secured by the candidates placed within the zone of consideration, it is seen that for the years 2007-08 and 2008-09, petitioner was awarded “outstanding”, for the year 2009-10 petitioner was graded “very good” and for the year 2011-12, petitioner was graded “good”. There is no dispute to the above four gradings of the petitioner. In respect of the year 2010-11, the statement shows that initially it was recorded as “V good” but later on the “V” was struck off. Thus the grading for the said year was taken as “good” which has materially affected the case of the petitioner as can be seen from the figures set out hereunder:- 2007-08 2008-09 2009-10 2010-11 2011-12 As per ACR Gradings OS OS VG VG G As per Selection Board OS OS VG G G If the gradings are taken as recorded in the ACRs, petitioner secures 16 marks on merit. He has been awarded 5.5 marks on seniority. Together the total becomes 21.50 which would place him in Gr-A. As per assessment of the Selection Board petitioner secured 15 marks on merit and together with 5.5 marks for seniority, his total became 20.50 and thereby he was placed in Gr-B. As a result of such alteration made in the ACR gradings of the petitioner for the year 2010-11 by the Selection Board he failed to make the grade and was not recommended for promotion. On the other hand, his juniors were recommended and consequently promoted. Mr. U. K. Nair, learned counsel for the petitioner submits that Selection Board had acted beyond jurisdiction in interfering with the gradings given by the accepting authority in the ACR for the year 2010-11. On the other hand, his juniors were recommended and consequently promoted. Mr. U. K. Nair, learned counsel for the petitioner submits that Selection Board had acted beyond jurisdiction in interfering with the gradings given by the accepting authority in the ACR for the year 2010-11. Though Selection Board was not bound by the gradings given in the ACRs while assessing the suitability of the candidates for promotion and can make its own assessment, in the event it seeks to interfere with the gradings given, particularly in the case of downgrading the ACRs, petitioner would have to be put on notice since such alteration in grading would result in adverse civil consequences for the petitioner. At this stage, it is submitted that similar issue has been decided by this Court in WP (C) No. 1078 of 2014 disposed of on 08.09.2015. Learned counsel for the respondents have not been able to show any distinguishing feature in the present case. Relevant portion of the order dated 08.09.2015 reads as under:- “Heard Mr J Roy, learned counsel for the petitioner and Ms B Bhuyan, learned Standing Counsel, PWD (Roads), who has produced the record. Also heard Mr Y S Mannan, learned Standing Counsel, PWD (Building and NH). There is no representation on behalf of respondent Nos. 6 to 21 though served. 2. This writ petition seeks quashing of the decision of the Selection Board dated 05.02.2014, not recommending the petitioner for promotion from Assistant Executive Engineer (Civil) to Executive Engineer (Civil) in the Public Works Department (PWD), Government of Assam. 3. Petitioner is serving as Assistant Executive Engineer (Civil) under PWD (Roads), presently posted at Morigaon. Position of the petitioner in the combined seniority list of Assistant Executive Engineer (Civil), PWD (Roads) and PWD (Building and NH), is at Serial No. 57. He also belongs to the OBC category. Position of respondent Nos. 13, 14, 15 and 16 are below the petitioner at Serial Nos. 62, 65, 68 and 72. For promotion from the rank of Assistant Executive Engineer to Executive Engineer, Annual Confidential Reports (ACRs) of the immediate 5 (five) preceding years of the officers, who were within the zone of consideration, were considered by the Selection Board in its meeting held on 05.02.2014. The Selection Board considered 16 (sixteen) vacancies of the year 2013 for promotion. For promotion from the rank of Assistant Executive Engineer to Executive Engineer, Annual Confidential Reports (ACRs) of the immediate 5 (five) preceding years of the officers, who were within the zone of consideration, were considered by the Selection Board in its meeting held on 05.02.2014. The Selection Board considered 16 (sixteen) vacancies of the year 2013 for promotion. It appears that for the periods from 2007-2008 to 2011-2012, petitioner had “outstanding” gradings in his ACRs. The Selection Board, however, downgraded the gradings from “outstanding” to “very good”. Consequently, petitioner was not recommended for promotion against the 16 (sixteen) vacancies for the year 2013. However, respondent Nos. 13, 14, 15 and 16, who are junior to the petitioners were recommended by the Selection Board at Serial Nos. 8, 9, 10 and 11. 4. Recommendation of the Selection Board was approved by the Government vide notification dated 10.02.2014. Thereafter, the promotions were made including that of respondent Nos. 13, 14, 15 and 16 on 14.02.2014. 5. Aggrieved, petitioner has approached this Court by filing the present writ petition. 6. Mr Roy, learned counsel for the petitioner, submits that Selection Board should not have downgraded the petitioner's gradings in his ACRs for all the 5 (five) years under consideration from “outstanding” to “very good”, firstly, because Selection Board had no competence to do so and secondly, it should not have done so without affording an opportunity of hearing to the petitioner. Referring to the minutes of the proceedings of the Selection Board meeting held on 05.02.2014, learned counsel submits that the 3 (three) grounds given for downgrading the ACR gradings of the petitioner are wholly untenable in the facts and circumstances of the case. He, therefore, submits that present is a fit case for interference by the Court and for directing re-consideration of the case of the petitioner for promotion at par with his juniors. 7. Ms Bhuyan, learned Standing Counsel PWD (Roads), submits from the common affidavit filed on behalf of respondent Nos. 1, 3 and 4 that Selection Board is not bound by the gradings recorded in the ACRs of the petitioner. They can make independent assessment of the suitability of a candidate for promotion. 7. Ms Bhuyan, learned Standing Counsel PWD (Roads), submits from the common affidavit filed on behalf of respondent Nos. 1, 3 and 4 that Selection Board is not bound by the gradings recorded in the ACRs of the petitioner. They can make independent assessment of the suitability of a candidate for promotion. Referring to paragraph - 10 of the said affidavit, she submits that respondents have followed the dictum laid down by the Apex Court in the case of Union Public Service Commission (UPSC) vs. K. Rajaiah, (2005) 10 SCC 15 . 8. Mr Mannan, learned Standing Counsel, PWD (Building and NH) supports the stand taken by Ms Bhuyan. 9. Submissions made by learned counsel for the parties have been considered. 10. At the outset, it may be pointed out without reference to any factual narrative that reliance placed by the respondents in the decision rendered in K Rajaiah (supra), appears to be wholly misplaced. The law relating to assessment of performance of a public servant and recording of gradings in ACRs has now been settled by the Apex Court in the case of Dev Dutt vs. Union of India & Others, (2008) 8 SCC 725 . The Apex Court has made it abundantly clear that irrespective of whether a grading is adverse or not the same should be communicated to the public servant to enable him to file representation against recording of any adverse remarks, which is required to be considered fairly and expeditiously by a higher authority. It is not necessary at this stage to delve into details the finding of the Apex Court rendered in Dev Dutt (supra). Suffice it to say that the decision rendered in Dev Dutt (supra) has been approved in the subsequent decision in Abhijit Ghosh Dastidar vs. Union of India, (2009) 16 SCC 146 . A larger Bench of the Apex Court in Sukhdev Singh vs. Union of India & Others, (2013) 9 SCC 566 , has held that the law laid down in Dev Dutt (supra) is a good law and has reiterated the proposition that every entry, not only adverse entry, should be communicated to the public servant within a reasonable time to give him an opportunity to carry out a self-appraisal as well as to submit representation if he harbours any grievance about recording of any such adverse entries. 11. 11. Having held so, it needs to be pointed out at this stage that the selection committee or the selection board can make its own assessment of suitability for promotion of the officers under consideration and is not required to blindly follow the gradings in the ACRs. Selection committee can make its own assessment irrespective of ACRs, without blindly following the gradings in the ACRs, as has been explained by the Apex Court in M.V. Thimmaiah vs. UPSC, (2008) 2 SCC 119 . 12. Having noticed the legal position as above, the impugned decision of the Selection Board meeting may now be adverted to. 13. Relevant portion of the minutes of the Selection Board meeting held on 05.02.2014, relating to the petitioner reads as under: - “D. In case of Sri Dhruba Kumar Deka, who was at Serial No. 57 in the inter-se-seniority, the Selection Board unanimously decided to consider the gradings as “Very Good” instead of “Outstanding” for the period 2007-2008 to 2011-12 for the following reasons:- i) All the ACRs were reviewed by a single officer and no any convincing reason for grading as “Outstanding” has been found to be recorded. Repeated assessment by a single reviewing officer may be biased and lack of application of proper judgment. ii) Moreover, the ACR for the period 2007-08, 2008-09, 2009-10 were not submitted in time and it was submitted much later, i.e., on 11.08.2011, 12.12.2011 and 07.07.2011 respectively. iii) It was further opined by the technical persons who happened to be the members of the Board including Chairman of the Selection Board that the performance of the concerned officer is not exceptional to be graded as “Outstanding”.” 14. From a careful reading of the aforesaid portion of the Selection Board proceedings, it is seen that for all the 5 (five) years under consideration Selection Board had graded the petitioner “very good” instead of “outstanding” as was recorded in the ACRs. Such downgrading has been justified for the 3 (three) reasons mentioned in the proceedings. Coming to the first reason, all that can be said is that petitioner cannot be faulted for having the same reviewing officer for the period under consideration. It was beyond his control and capacity to have different reviewing officers or accepting officers. Such downgrading has been justified for the 3 (three) reasons mentioned in the proceedings. Coming to the first reason, all that can be said is that petitioner cannot be faulted for having the same reviewing officer for the period under consideration. It was beyond his control and capacity to have different reviewing officers or accepting officers. However, in this case, it has been pointed out at the Bar that as a matter of fact, there were different accepting officers of the petitioner for the years under consideration. All of them had graded the petitioner as “outstanding”. Coming to the second reason of non-submitting the ACRs within time, the same explanation as to reason No. 1 would also be attracted. If the ACRs are in the custody of the reviewing officer/ accepting officer, petitioner cannot have any control over the movement of his ACRs. If there is any delay in submission of the ACRs the fault would be that of the accepting officer, for which petitioner cannot be blamed. Lastly, the opinion of the technical persons, which was taken into account by the Selection Board, that the performance of the petitioner was not exceptional so as to grade him “outstanding”, all that can be said is that such technical persons were neither the reporting officer nor the reviewing officer, nor the accepting officer. At least, the minutes of the proceedings do not disclose anything to the contrary. 15. Having noticed the above, Court is of the considered opinion that downgrading the petitioner from “outstanding” to “very good” for the years under consideration by the Selection Board was not at all justified, which is further compounded by the fact that no notice was given to the petitioner before such downgradation. Moreover, the mandate of the Selection Board was to assess the suitability of the eligible officers for promotion and not to re-assess gradings in the ACRs. Needless to say, the objectives of both assessments are different. 16. Thus, this has vitiated consideration of the case of the petitioner by the Selection Board in its meeting held on 05.02.2014 and his consequential omission from promotion. Coupled with this, there was no comparative assessment of suitability of the petitioner vis-à-vis his juniors. 17. That being the position, case of the petitioner for promotion is required to be re-considered. 16. Thus, this has vitiated consideration of the case of the petitioner by the Selection Board in its meeting held on 05.02.2014 and his consequential omission from promotion. Coupled with this, there was no comparative assessment of suitability of the petitioner vis-à-vis his juniors. 17. That being the position, case of the petitioner for promotion is required to be re-considered. Accordingly, respondents are directed to hold review Selection Board meeting to consider the case of the petitioner for promotion from Assistant Executive Engineer (Civil) to Executive Engineer (Civil) in the PWD for the year 2013, at par with his juniors, i.e. respondent Nos. 13, 14, 15 and 16, along with the promotee batch for the year 2013. This shall be done within a period of 3 (three) months from the date of receipt of a certified copy of this order. 18. Writ petition is allowed. 19. However, there shall be no order as to costs.” In the light of the above, Court is of the view that the course of action adopted by the Selection Board in respect of the petitioner was not justified and cannot be sustained. Consequently, it now becomes necessary for the respondents to hold review DPC to reconsider the case of the petitioner for promotion from Assistant Executive Engineer (Civil) to Executive Engineer (Civil) for the year 2013, if necessary by obtaining clarification from the reviewing/accepting authorities. This shall be done within a period of 3 (three) months from the date of receipt of a certified copy of this order. Writ petition is accordingly allowed. No cost.