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Gujarat High Court · body

2016 DIGILAW 1517 (GUJ)

Ramchandra H. Dave v. State of Gujarat

2016-07-27

ABHILASHA KUMARI

body2016
JUDGMENT : Abhilasha Kumari, J. 1. This petition under Article 226 of the Constitution of India has been preferred, inter-alia, with a prayer to direct the respondent authorities to consider the case of the petitioner for promotion to the post of Joint Director (Accounts) by ignoring the Annual Confidential Reports (ACRs) which have not been communicated to him. 2. Briefly stated, the facts of the case are that the petitioner was selected through the Gujarat Public Service Commission (GPSC) by the Finance Department of the State Government and was appointed as Accounts Officer Class-II on 07.06.1984. He was, thereafter, posted at the District Panchayat, Kutch at Bhuj. On 01.01.1990, the petitioner was directly recruited after selection as Account Officer, Class-I at the District Panchayat, Junagadh. On 25.02.2004, the petitioner was promoted as Deputy Director (Accounts) and posted as Chief Auditor, in Rajkot Municipal Corporation. The next promotional post from the post of Deputy Director (Accounts) is Joint Director (Accounts) though the pay-scale of both the posts remains the same. The minimum requirement for promotion to the post of Director (Accounts) is three years' experience on the post of Joint Director (Accounts), whereas the criteria for promotion from the post of Joint Director (Accounts) is merit-cum-seniority (Selectivity) as per the Gujarat Civil Services (Classification and Recruitment) Rules, 2005 ("the Rules" for short). There was an amendment to the Rules by way of a Notification dated 29.10.2005, whereby the benchmark was enhanced from 'Good' to 'Very Good'. Pursuant thereto, the State Government issued a Government Resolution dated 29.10.2005 stating that the officers who are graded as 'Good' or 'Unfit' shall not be included in the Select List for promotion on a Class-I post. The petitioner had already entered into the zone of consideration for the post of Joint Director (Accounts), but the meeting of the Departmental Promotion Committee (DPC) had not been convened. The petitioner, therefore, made an application under the Right to Information Act, 2005 ("the RTI Act" for short), on 14.11.2011, requesting to be supplied with copies of certain documents along with his ACRs for the last eight years. The said documents were supplied on 02.02.2012. The position in the ACRs of the petitioner for the last eight years is illustrated in tabular form as under:- Year ACR Remarks 2002-03 ‘Very Good’ I agree but his rating should be brought down to ‘good’ and ‘good’ officer’. The said documents were supplied on 02.02.2012. The position in the ACRs of the petitioner for the last eight years is illustrated in tabular form as under:- Year ACR Remarks 2002-03 ‘Very Good’ I agree but his rating should be brought down to ‘good’ and ‘good’ officer’. 2003-04 ‘Very Good’ 2004-05 ‘Good’ 2005-06 ‘Good’ 2006-07 ‘Good’ 2007-08 ‘Very Good’ Very Good Officer 2008-09 ‘Very Good’ 2009-10 ‘Very Good’ 2.1 It is only on receipt of the said documents that it came to the knowledge of the petitioner, for the first time, that for the years 2004-05, 2005-06 and 2006-07, the remarks 'Good' were never communicated to him. As the benchmark had been changed from 'Good' to 'Very Good', the entries of 'Good' would have an adverse impact on the promotional chances of the petitioner. According to the petitioner, such uncommunicated adverse entries could not have been considered by the DPC. On 28.03.2011, the petitioner came to know that the DPC was convened only on 28.03.2011, two days prior to the completion of the year 2010-11, so that the ACR for the year 2010-11 could not be taken into consideration. As per the knowledge of the petitioner on 09.01.2011, persons juniors to the petitioner have been given promotion as Joint Director (Accounts), ignoring the petitioner. It is only on 02.04.2014, during the pendency of the petition, that the petitioner was promoted to the post of Joint Director (Accounts). 2.2 Thereafter again, during the pendency of the petition, the petitioner was promoted to the post of Director (Accounts) on 19.07.2016 and is, at present, working at Sardar Sarovar Narmada Nigam Limited. 2.3 The case of the petitioner is that the uncommunicated adverse entries of 'Good' could not have been considered by the respondents, so as to deny him the promotion to the post of Joint Director (Accounts) from the deemed date 09.01.2011 and for Director (Accounts) after he gained three years experience as a Joint Director. Aggrieved by the action of the respondents, the petitioner has approached this Court. 3. Mr. H.M. Prachchhak, learned advocate for the petitioner, has submitted that the respondents have never communicated any adverse entries to the petitioner, including those of 'Good'. The said entries would be considered as adverse and detrimental to the promotional chances of the petitioner, due to the amendment in the Rules and the enhancement of the benchmark from 'Good' to 'Very Good'. H.M. Prachchhak, learned advocate for the petitioner, has submitted that the respondents have never communicated any adverse entries to the petitioner, including those of 'Good'. The said entries would be considered as adverse and detrimental to the promotional chances of the petitioner, due to the amendment in the Rules and the enhancement of the benchmark from 'Good' to 'Very Good'. As the entries of 'Good' would have worked against the petitioner, marring his chances of promotion, they ought to have been communicated to him. The non-communication of the said entries has resulted in the delayed promotion of the petitioner to the post of Joint Director and, consequently, to that of Director. The said uncommunicated adverse entries, therefore, deserve to be quashed and set aside. 3.1 In support of the above submissions, reliance has been placed upon the following judgments: "(1) Dev Dutt v. Union of India and others reported in (2008) 8 SCC 725 (2) Abhijit Gosh Dastidar v. Union of India and others reported in (2009) 16 SCC 146 (3) Prabhu Dayal Khandelwal v. Chairman, U.P.S.C. & Ors. reported in AIR 2015 SC 3057 (4) Sukhdev Singh v. Union of India and others reported in (2013) 9 SCC 566 " 4. The petition has been strongly opposed by Mr. Niraj Ashar, learned Assistant Government Pleader, by submitting that it is not disputed that the entries of 'Good' in the ACRs of the petitioner were not communicated to him. However, as per the Government Resolution dated 29.10.2005, by which the Rules have been amended, there is no provision for the communication of the 'Good' entries. 4.1 It is further submitted that in any case, for the purpose of promotion, the petitioner is required to have five entries of 'Very Good' which he does not have. The petitioner has only three such entries, therefore, he has rightly not been considered for promotion. 5. Mr. Premal R. Joshi, learned advocate for respondent No. 2 has submitted that the said respondent is a formal party and would have no role to play in the petition. He has, however, adopted the arguments advanced by the learned Assistant Government Pleader. 6. No other submissions have been advanced by learned counsel for the respective parties. 7. This Court has heard learned counsel for the respective parties, perused the averments made in the petition and the documents annexed thereto. 8. He has, however, adopted the arguments advanced by the learned Assistant Government Pleader. 6. No other submissions have been advanced by learned counsel for the respective parties. 7. This Court has heard learned counsel for the respective parties, perused the averments made in the petition and the documents annexed thereto. 8. The position of law with regard to the communication of adverse entries has been clearly laid down in the case of Dev Dutt v. Union of India and others (supra), in the following terms: "9. In the present case the benchmark (i.e. the essential requirement) laid down by the authorities for promotion to the post of Superintending Engineer was that the candidate should have 'very good' entry for the last five years. Thus in this situation the 'good' entry in fact is an adverse entry because it eliminates the candidate from being considered for promotion. Thus, nomenclature is not relevant, it is the effect which the entry is having which determines whether it is an adverse entry or not. It is thus the rigours of the entry which is important, not the phraseology. The grant of a 'good' entry is of no satisfaction to the incumbent if it in fact makes him ineligible for promotion or has an adverse effect on his chances. 10. Hence, in our opinion, the 'good' entry should have been communicated to the appellant so as to enable him to make a representation praying that the said entry for the year 1993-94 should be upgraded from 'good' to 'very good'. Of course, after considering such a representation it was open to the authority concerned to reject the representation and confirm the 'good' entry (though of course in a fair manner), but at least an opportunity of making such a representation should have been given to the appellant, and that would only have been possible had the appellant been communicated the 'good' entry, which was not done in this case. Hence, we are of the opinion that the non-communication of the 'good' entry was arbitrary and hence illegal, and the decisions relied upon by the learned counsel for the respondent are distinguishable." 9. Hence, we are of the opinion that the non-communication of the 'good' entry was arbitrary and hence illegal, and the decisions relied upon by the learned counsel for the respondent are distinguishable." 9. As seen from the above, though the entry 'Good' would normally not be considered to be a negative one, however, it becomes an adverse entry when it has the effect of elimination of a candidate for being considered for promotion, in view of the benchmark of 'Very Good', as has happened in the present case. 10. Any entry that is adverse would have to be communicated to the petitioner as held by the Supreme Court in this very judgment, as below: "13. In our opinion, every entry (and not merely a poor or adverse entry) relating to 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 bench mark or not. Even if there is no bench mark, non-communication of an entry may adversely affect the employee's chances of promotion (or getting some other benefit), because when comparative merit is being considered for promotion (or some other benefit) a person having a 'good' or 'average' or 'fair' entry certainly has less chances of being selected than a person having a 'very good' or 'outstanding' entry. 11. The judgment in the case of Dev Dutt v. Union of India and others (supra) has been confirmed by a Larger Bench of the Supreme Court in the case of Sukhdev Singh v. Union of India and others (supra), in the following terms: "6. We are in complete agreement with the view in Dev Dutt particularly paras 17, 18, 22, 37 and 41 as quoted above. We approve the same. 7. *** *** *** "8. In our opinion, the view taken in Dev Dutt that every entry in ACR of a public servant must be communicated to him/her within a reasonable period is legally sound and helps in achieving threefold objectives. First, the communication of every entry in the ACR to a public servant helps him/her to work harder and achieve more that helps him in improving his work and give better results. First, the communication of every entry in the ACR to a public servant helps him/her to work harder and achieve more that helps him in improving his work and give better results. Second and equally important, on being made aware of the entry in the ACR, the public servant may feel dissatisfied with the same. Communication of the entry enables him/her to make representation for upgradation of the remarks entered in the ACR. Third, communication of every entry in the ACR brings transparency in recording the remarks relating to a public servant and the system becomes more conforming to the principles of natural justice. We, accordingly, hold that every entry in ACR - poor, fair, average, good or very good - must be communicated to him/her within a reasonable period." 12. In the case of Abhijit Gosh Dastidar v. Union of India and others (supra), in which the issue regarding the benchmark 'Very Good' for being considered for promotion was an issue, the Supreme Court has held as below: "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. 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 such 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 case, SCC p. 738, para 41) 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." 13. This judgment has also been referred to in the Larger Bench of the Supreme Court in Sukhdev Singh v. Union of India and others (supra). 14. The respondent has no case that the appellant had ever been informed of the nature of the grading given to him." 13. This judgment has also been referred to in the Larger Bench of the Supreme Court in Sukhdev Singh v. Union of India and others (supra). 14. In a later judgment in the case of Prabhu Dayal Khandelwal v. Chairman, U.P.S.C. & Ors. (supra), the Supreme Court has held as below: "7. In the above view of the matter, we are satisfied that the impugned order passed by the High Court, deserves to be set aside, inasmuch as, the claim of the appellant could not be ignored by taking into consideration, uncommunicated Annual Confidential Reports for the years 1995-1996, 1996-1997 and 1998-1999, wherein the appellant was assessed as "good". In the absence of the aforesaid entries, it is apparent, that the remaining entries of the appellant being "very good", he would be entitled to be considered fit for the promotion, to the post of Chief Commissioner of Income Tax, on the basis of the then prevailing DoPT guidelines, and the remaining valid Annual Confidential Reports." 15. The principles of law enunciated by the Supreme Court in the above judgment would be squarely applicable to the facts of the present case. The result would be that the entries of 'Good' in the ACRs of the petitioner for the years 2002-03 upto 2009-10, which have admittedly not been communicated to him, are liable to be quashed and set aside and the performance of the petitioner is required to be assessed on the basis of the entries of 'Very Good'. 16. As regards the assessment for the year 2002-03, the Reporting Officer has assessed the petitioner as 'Very Good'. This assessment has been downgraded by the Reviewing Officer to 'Good'. This, in itself, is in contravention of the Circulars dated 06.03.2004, 29.11.2006 and 20.06.2007. No reasons have been assigned by the Reviewing Officer for downgrading the assessment of the petitioner from 'Very Good' to 'Good'. The assessment as 'Very Good' by the Reporting Officer could not, therefore, have been downgraded by the Reviewing Officer without assigning reasons, as it is in contravention of the instructions of the State Government. 17. No reasons have been assigned by the Reviewing Officer for downgrading the assessment of the petitioner from 'Very Good' to 'Good'. The assessment as 'Very Good' by the Reporting Officer could not, therefore, have been downgraded by the Reviewing Officer without assigning reasons, as it is in contravention of the instructions of the State Government. 17. The submission advanced by the learned Assistant Government Pleader that the Government Resolution dated 29.10.2005, whereby the Rules have been amended pursuant to the amendment of the Rules, does not provide for the communication of the remarks of 'Good', therefore, they were not communicated, cannot be accepted in light of the above legal position. 18. As a result of the above discussion, the petitioner is entitled to be considered for promotion to the post of Joint Director (Accounts) with effect from 14.11.2011 and further promotion to the post of Director (Accounts) and, consequently, for promotion to the next higher post of Director (Accounts) after the completion of three years of service as Joint Director (Accounts) 19. In the above view of the matter and for reasons stated hereinabove, the following order is passed: "The 'Good' entries in the ACRs of the petitioner for the period under consideration, which have remained uncommunicated and have been considered as adverse, shall not be considered. The respondents are directed to consider the case of the petitioner for promotion to the post of Joint Director with effect from 14.11.2011, and for consequential promotion to the post of Director (Accounts) from the date on which the petitioner was eligible to be so considered. The petitioner shall also be granted all consequential benefits of promotion, whether financial, or otherwise, which fall due to him." 20. The petition is allowed, in the above terms. Rule is made absolute, accordingly. There shall be no orders as to costs.