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2015 DIGILAW 2 (MAN)

Joseph Zimik v. State of Manipur

2015-01-06

KH.NOBIN SINGH

body2015
JUDGMENT Kh. Nobin Singh, J. 1. Heard Shri Mark Khapai, learned counsel for the petitioner, Shri Shyam Sharma, learned Government Advocate for the respondent Nos. 1 and 2 and Shri Th. Romel (Jr. to Shri I. Lalitkumar, Sr. Advocate) for the respondent No. 3 (MPSC). 2. The present writ petition has been filed by the petitioner praying for issuing directions to the respondents to promote him to the post of Inspector of Police with retrospective effect from the date his juniors were promoted. 3. The facts, in short, are that the petitioner was initially appointed as Sub-Inspector in the year 1986 in the Police Department, Government of Manipur vide order dated 26-09-1986 issued by the Police Headquarter. While serving as Sub-Inspector in Ukhrul Police Station, Government of Manipur, the petitioner was placed under suspension in contemplation of a disciplinary proceeding in connection with the lost of arms and ammunitions. On completion of the enquiry, the Enquiry Officer submitted a report dated 12-09-2001 recommending a minor punishment of withholding increments for 3 (three) years with cumulative effect and reinstatement of the petitioner in service. The Disciplinary Authority, Deputy Inspector General of Police, after examining the enquiry report, awarded the petitioner a punishment for dismissal from service with immediate effect vide order dated 06-08-2002 issued by it. Being aggrieved by the order dated 06-08-2002 issued by the Disciplinary Authority, Dy. Inspector General of Police, the petitioner approached the Hon'ble High Court by way of a writ petition being W.P. (C) No. 675 of 2003 challenging the said order of dismissal. The Hon'ble High Court vide its order dated 07-03-2005 was pleased to set aside and quash the dismissal order dated 06-08-2002 and to direct for reinstatement of the petitioner in service within a period of 3 (three) months. Pursuant to and in compliance of the said order dated 07-03-2005, the Superintendent of Police, Ukhrul District, Manipur issued an order dated 02-09-2007 reinstating the petitioner in service and the petitioner was posted at Chassad Police Station with immediate effect. In the year 2008 and on the recommendation of a Class - II DPC held on 05-05-2008 in association with the Manipur Public Service Commission (MPSC), 54 (fifty-four) Sub-Inspector of Civil Police, excluding the petitioner, were promoted to the post of Inspector of Police (Civil) vide order dated 08-05-2008 issued by the State Government. In the year 2008 and on the recommendation of a Class - II DPC held on 05-05-2008 in association with the Manipur Public Service Commission (MPSC), 54 (fifty-four) Sub-Inspector of Civil Police, excluding the petitioner, were promoted to the post of Inspector of Police (Civil) vide order dated 08-05-2008 issued by the State Government. Another DPC of Class - II was held on 20-11-2009 in association with the MPSC and on its recommendation, 119 (one hundred and nineteen) Sub-Inspector Civil Police were promoted to the post of Inspector of Police (Civil) in the Police Department, Government of Manipur on regular basis vide order dated 23-12-2009 issued by the State Government. This time also, the petitioner was not promoted to the post of Inspector of Police. Immediately after he came to know about the Government Order dated 23-12-2009, the petitioner submitted a representation to the Hon'ble Chief Minister and the Director General of Police on 28-12-2009 to consider his case for promotion with effect from the date his juniors were promoted so as to retain seniority and other service benefits in the grade of Inspector of Police. Since no decision has been taken by the State Government, the present writ petition is filed by the petitioner to redress his grievances. 4. It is submitted by the counsel for the petitioner that as per Recruitment Rules, a Sub-Inspector of Police who has 5 (five) years of regular service in the grade, is eligible to be promoted to the post of Inspector of Police and since the petitioner has served for more than 20 (twenty) years as Sub-Inspector of Police, he is eligible for promotion to the post of Inspector of Police. As per Final Seniority List published on 18-06-1998 by the Director General of Police, the petitioner was placed at Sl. No. 116 whereas in the Final Seniority List of Sub-Inspectors published on 01-06-2009, the petitioner was placed at Sl. No. 3 and moreover, the petitioner was the senior most amongst the ST candidates in the grade of Sub-Inspector of Police. All his juniors have been promoted to the post of Inspector of Police without the petitioner being promoted. No. 116 whereas in the Final Seniority List of Sub-Inspectors published on 01-06-2009, the petitioner was placed at Sl. No. 3 and moreover, the petitioner was the senior most amongst the ST candidates in the grade of Sub-Inspector of Police. All his juniors have been promoted to the post of Inspector of Police without the petitioner being promoted. It is also submitted by the counsel for the petitioner that the petitioner did not receive any show cause notice from the Police Headquarter (Admn.) about any adverse remarks being recorded in his Annual Confidential Report (ACR) and the DPC never considered the case of the petitioner denying his right to be considered and such denial was discriminatory, deliberate and mala fide and it was done to give undue advantage to some for vested interest and to destroy the image of the police force. 5. The counsel for the respondent No. 3, relying upon the averments made in their affidavit-in-opposition, has submitted that in the DPC meeting held on 05-05-2008 for appointment by promotion to the post of Inspector of Police in the Police Department, Government of Manipur, the petitioner was also considered by placing him at Sl. No. 20 in the ACR Assessment Chart. However, the petitioner could not be recommended to the post of Inspector of Police owing to the fact that he was placed under suspension followed by dismissal for the period from 2001-2007. In the DPC meeting held on 20-11-2009, the case of the petitioner was again considered for promotion to the post of Inspector against the 14 (fourteen) vacant post available for the year 2008-2009. Though the petitioner's name was placed at Sl. No. 4 in the ACRs Assessment Chart, he was not recommended for promotion in view of the fact that the overall grading in his ACRs was poor. On the same day, the DPC also considered the case of the petitioner for promotion to 98 (ninety-eight) vacant post of Inspector of Police. However, the ACRs grading of the petitioner was not recorded in the Assessment Chart for vacancies available in the year 2009-2010 on the ground that the overall grading of the petitioner would be 'poor' as his ACRs grading for 3 (three) consecutive years out of 5 (five) years to be considered i.e. for 2004-2005, 2005-2006 and 2006-2007 were poor. However, the ACRs grading of the petitioner was not recorded in the Assessment Chart for vacancies available in the year 2009-2010 on the ground that the overall grading of the petitioner would be 'poor' as his ACRs grading for 3 (three) consecutive years out of 5 (five) years to be considered i.e. for 2004-2005, 2005-2006 and 2006-2007 were poor. Therefore, it has been submitted that the writ petition is devoid of merit and is liable to be dismissed. The counsel for the respondent Nos. 1 and 2 has submitted that the DPC was conducted by the MPSC in consonance with the existing rules and since the petitioner was under suspension on 03-09-2000 which was followed by a dismissal from service, his ACRs with effect from 2001-2006-2007 had not been initiated. The counsel for the respondent Nos. 1 and 2 has raised a preliminary objection that those persons who have been promoted as Inspector of Police vide order dated 23-12-2009 are necessary parties but they are not impleaded as parties in the writ petition. In case the prayer made by the petitioner in his writ petition is to be granted, those persons who have not been impleaded, will be affected and therefore, the writ petition is not maintainable due to non-impleadment of necessary parties. 6. Since the counsel for the respondent Nos. 1 & 2 has raised a preliminary objection, it will be considered and decided at the first instance. It is submitted by the counsel for the respondent Nos. 1 & 2 that as the persons who have been promoted to the post of Inspector of Police are not impleaded as party respondents, the present writ petition is not maintainable on the ground of non-joinder of necessary parties. This submission has no substance in view of the fact that neither the DPC proceedings nor the Government Orders dated 08-05-2008 and 23-12-2009 issued on the recommendation of the said DPC are under challenge in the writ petition and the main prayer in the writ petition is that the respondents be directed to promote the petitioner to the post of Inspector of Police with retrospective effect from the date his juniors were promoted. In the event of the petitioner being found to be illegally denied promotion and accordingly, the writ petition being allowed, only the petitioner is to be promoted to the post of Inspector of Police and placed at the right place which will not affect the rights of the persons, already promoted, because they were junior to him as Sub-Inspector of Police. Hence, the said preliminary objection is overruled. 7. It is not in dispute that as per the Recruitment Rules, a Sub-Inspector of Police who is 5 years of regular service in the grade, is eligible for promotion to the post of Inspector of Police and that the petitioner has served, at the relevant, more than 20 (twenty) years in the grade. It is well settled principle of law that a Government employee has a right to be considered for promotion, for which he is eligible in accordance with law, which is virtually a part of the fundamental rights under Article 16 of the Constitution. 8. To substantiate his contention, the counsel for the petitioner has relied upon the decision rendered by the Hon'ble Supreme Court in the case of R.K. Sethi v. Oil & Natural Gas Commission reported in : (1997) 10 SCC 616 wherein the Hon'ble Supreme Court has held that the rule seeks to ensure that if a junior employee is given promotion without considering his senior, then the senior employee can claim the right to be considered for such promotion with effect from the date on which the junior was so promoted. The counsels for the respondents have not cited any decision wherein the Hon'ble Supreme Court has taken a contrary view. The only question which arises for consideration by this court is as to whether the petitioner was in fact considered by the DPC in its meetings held on 05-05-2008 and 20-11-2009 for promotion to the post of Inspector of Police or not and this fact can only be ascertained from the perusal of the proceedings of the DPCs. 9. By order dated 22-09-2010, this court directed the counsel appearing for the respondent No. 3 to produce the DPC proceedings held for promotion from the post of Sub-Inspector to Inspector in the year 2008 and 2009. 9. By order dated 22-09-2010, this court directed the counsel appearing for the respondent No. 3 to produce the DPC proceedings held for promotion from the post of Sub-Inspector to Inspector in the year 2008 and 2009. It appears that in compliance of the said order, the DPC proceedings were produced which is evident from the order dated 29-05-2014 passed by this court directing the Registry to trace out the DPC proceedings and attach the same to the record. On perusal of the assessment chart, by this court on 19-08-2014, produced by the counsel for the respondent No. 3 along with the proceedings of the DPC, it appeared to this court that when the petitioner was under order of dismissal for the period 2004-2005, 2005-2006, 2006-2007, the petitioner was awarded grading 'poor' in one and in the other, no grading was given and accordingly, the counter on behalf of the State respondents was directed to be filed to explain the above. Though the counter affidavit on behalf of the respondent Nos. 1 & 2 was filed on 12-09-2014, it did not explain as to how the petitioner was awarded grading 'poor' for the period 2004-2005, 2005-2006, 2006-2007 when the petitioner was under order of dismissal as directed by this court on 29-05-2014 and 19-08-2014 and the only stand taken by the State Government, in its affidavit-in-opposition, was that the ACRs of the petitioner with effect from 2001-2006-2007 had not been initiated. 10. On perusal of the proceedings of the DPC held on 05-05-2008, it is found that the Committee has recorded that the Committee, after examining the integrity certificate, relevant documents and assessing the overall gradings of ACRs of the officers, recommended the officer mentioned therein for appointment by promotion to the post of Inspector of Police. In the Assessment Chart prepared for consideration against the vacancies available upto the year 2007-2008 which was considered by the DPC on 05-05-2008, no award of grading is shown in respect of the petitioner except the term "Suspension followed by dismissal 2001-2007". On perusal of the proceedings held on 20-11-2009, it is found that the Committee has recorded the same wording as aforesaid. In the Assessment Chart prepared for consideration against the vacancies available in the year 2008-2009, the petitioner was awarded grading 'poor' for the period 2003-2004, 2004-2005, 2005-2006, 2006-2007 and 'Very Good' for the year 2007-2008 and overall grading as 'poor'. In the Assessment Chart prepared for consideration against the vacancies available in the year 2008-2009, the petitioner was awarded grading 'poor' for the period 2003-2004, 2004-2005, 2005-2006, 2006-2007 and 'Very Good' for the year 2007-2008 and overall grading as 'poor'. However, in the Assessment Chart prepared for consideration against the vacancies available in the year 2009-2010, the ACRs grading of the petitioner was not recorded at all. 11. From the perusal of the proceedings of the DPC, it cannot be technically said that the petitioner was not considered by the DPC in its meetings held on 05-05-2008 and 20-11-2009 in respect of the vacancies available upto the year 2007-2008 and for the year 2008-2009. But the consideration is as good as non-consideration for the reason that the result thereof will remain the same because in the Assessment Chart prepared in respect of the DPC held on 05-05-2008, there is no award of grading except the term "Suspension followed by dismissal 2001-2007" and in respect of the DPC held on 20-11-2009 for consideration against the vacancies available for the year 2008-2009, the petitioner was awarded grading 'poor'. In so far as the DPC held on 20-11-2009 for consideration of eligible persons in respect of the vacancies available for the year 2009-2010, it cannot be said that the petitioner was considered because the ACRs grading of the petitioner was not recorded at all. The respondent No. 3, in its affidavit-in-opposition, has admitted that the ACRs grading of the petitioner in respect of the vacancies available for the year 2009-2010 was not recorded on the ground that the overall grading of the petitioner would be 'poor' as his ACRs grading for 3 (three) consecutive years out of 5 (five) years, to be considered i.e. 2004-2005, 2005-2006 & 2006-2007, were poor. The said approach of the DPC is incorrect and it cannot go by the presumption. Whatever may be the ACRs of the petitioner, the same ought to have been reflected in the assessment chart which the DPC failed to do so. 12. The said approach of the DPC is incorrect and it cannot go by the presumption. Whatever may be the ACRs of the petitioner, the same ought to have been reflected in the assessment chart which the DPC failed to do so. 12. There is one aspect which the respondents, despite the orders dated 29-05-2014 and 19-08-2014 passed by this court, failed to explain as to how the petitioner was awarded grading 'poor' for the period 2004-2005, 2005-2006, 2006-2007 when the petitioner was under order of dismissal and in other words, when the petitioner was not in service, it is difficult to understand as to how the ACRs of the petitioner came to be written and who did that. Moreover, this court finds it absolutely astonishing that in the assessment chart prepared in respect of the DPC held on 05-05-2008 for consideration against the vacancies upto the year 2007-2008, there is no award of grading except the term "Suspension followed by dismissal 2001-2007" and in respect of the DPC held on 20-11-2009 for consideration against the vacancies available for the year 2008-2009, the petitioner was awarded grading 'poor' for the period 2004-2005, 2005-2006, 2006-2007. One of the contentions of the petitioner is that the petitioner did not receive any show cause notice from the Police Headquarter (Admn.) about any adverse remarks being recorded in his Annual Confidential Report (ACR). In this regard, the counsel for the petitioner has relied upon the decision rendered by the Hon'ble Supreme Court in the case of Dev Dutt v. Union of India & others, reported in : (2008) 8 SCC 725 wherein the Hon'ble Supreme Court has held that every entry (and not merely a poor or adverse) relating an employee under the State or an instrumentality of the State, whether in civil, judicial, police or other service (except the military) must be communicated to him, within a reasonable period and it makes no difference whether there is a benchmark or not. The Hon'ble Supreme Court further held that the non-communication of an entry in the ACR of a public servant is arbitrary. The said contention is not controverted by the State Government and moreover, the State Government, in its affidavit-in-opposition, has stated that the ACRs of the petitioner for the year 2001-2006-2007 had not been initiated. 13. The Hon'ble Supreme Court further held that the non-communication of an entry in the ACR of a public servant is arbitrary. The said contention is not controverted by the State Government and moreover, the State Government, in its affidavit-in-opposition, has stated that the ACRs of the petitioner for the year 2001-2006-2007 had not been initiated. 13. As has been stated in the preceding para, it may be noted that neither the DPC proceedings nor the Government Orders dated 08-05-2008 and 23-12-2009 issued on the recommendation of the said DPCs are under challenge in the writ petition and the main prayer in the writ petition is that the respondents be directed to promote the petitioner to the post of Inspector of Police with retrospective effect from the date his juniors were promoted. Therefore, it may not be appropriate for this court to issue any direction in the present writ petition as regards the correctness of writing ACRs of the petitioner or non-communication thereof to the petitioner by the State Government and the erroneous or otherwise of the proceedings of the DPCs. It is open to the petitioner, if so advised, to approach the appropriate forum for redressal of his grievances in this regard. However, there are certain peculiar circumstances in the present case and the same are: (a) The petitioner has, at the time of consideration by the DPC, served more than 20 years; (b) As per the Seniority List, the petitioner is senior to many of those who have been promoted to the post of Inspector of Police; (c) In case the enquiry report recommending withholding of increment was accepted by the State Government, the present controversy which was created by the order of dismissal, could have been avoided; (d) The petitioner was awarded grading 'poor' for the 2003-2004, 2004-2005, 2005-2006 and 2006-2007 when the petitioner was not in service without any explanation and without intimating the same to the petitioner; (e) On the one hand, it is stated that the petitioner could not be recommended in the year 2008 because at the relevant time he was under suspension followed by dismissal and that on the other, he could not be recommended in the year 2009 because the ACRs grading of the petitioner was 'poor'. These two seem to be contradictory; (f) The Government Order dated 06-08-2002 dismissing the petitioner from service was set aside and quashed by the Hon'ble High Court and accordingly, the petitioner was re-instated vide Government order dated 02-09-2007. Has the State Government considered the agony that the petitioner suffered from 06-08-2002 to 02-09-2007 for no fault of him? (g) In respect of vacancies available for the year 2009-2010, the petitioner appears to have not been considered on the presumption that his ACRs would be 'poor'; (h) The petitioner having served about 29 years by now, may be on the verge of retirement without any promotion on account of the said single incident. 14. In view of the aforesaid peculiar circumstances, this court is of the opinion that the end of justice will be made by directing the petitioner to submit a representation which will be considered by the Respondents. I accordingly, direct the petitioner to submit a representation to the respondents within a period of two weeks from today and direct the respondents to consider the representation, if submitted, sympathetically and take an appropriate decision with cogent reasons keeping in view the aforesaid peculiar circumstances and the observations made hereinabove by this court within a month from the date of receipt of the said representation. The present writ petition stands disposed of accordingly.