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2016 DIGILAW 1549 (GUJ)

Ramanlal Jivanlal Patel v. State of Gujarat

2016-07-29

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 issue a writ of Mandamus or any other appropriate writ or directions to the respondents to confer the benefits of promotion to the post of Deputy Director (Accounts) upon the petitioner with effect from 26.05.2009 with consequential and incidental benefits and/or direct the respondents to consider 26.05.2009 as the date of promotion of the petitioner to the said post. A consequential prayer has also been made to consider the petitioner for promotion to the post of Joint Director (Accounts). 2. Briefly stated, the relevant facts of the case are the petitioner was appointed as Accounts Officer, Class-II, by way of regular selection vide approval of the Gujarat Public Service Commission (GPSC) on 09.03.1988. The petitioner was promoted as Accounts Officer, Class-I, on 07.10.1997. He was then promoted as Deputy Director (Accounts) (Class-I) on 10.07.2012. The claim of the petitioner, however, is that he should have been promoted to the said post with all consequential benefits with effect from 26.05.2009, which is the date on which the juniors of the petitioner were so promoted. According to the petitioner, his entire service career has remained blotless and no adverse remarks have ever been communicated officially to him. Consequent upon receiving the information under the Right to Information Act, 2005 ('the RTI Act' for short), the petitioner made a representation, which has remained unanswered till date. He has been assessed as 'Good' in the years 2000-01, 2001-02, 2002-03, 2003-04 and 2004-05. However, admittedly, these remarks have never been communicated to the petitioner. In the assessment of the past eight years done by the Departmental Promotion Committee (DPC), the petitioner has come to know that on 29.01.2009 when the DPC met to consider the ACRs of the petitioner from the year 200-01 to 2007-08 that the assessments of 'Good' that were made were considered adversely but never communicated to him. In the assessment of the past eight years done by the Departmental Promotion Committee (DPC), the petitioner has come to know that on 29.01.2009 when the DPC met to consider the ACRs of the petitioner from the year 200-01 to 2007-08 that the assessments of 'Good' that were made were considered adversely but never communicated to him. The position of the ACRs of the petitioner for the eight years in question is as below: Position of Confidential Reports for eight years Year Remarks 2000-01 Good 2001-02 Good 2002-03 Good 2003-04 Good 2004-05 Good 2005-06 Very Good 2006-07 Very Good 2007-08 Very Good 2.1 Aggrieved by the action of the respondents in not promoting him from the date on which his juniors were promoted with effect from 26.05.2009, the petitioner has approached this Court by way of the present petition. 3. Mr. Hardik C. Rawal, learned advocate for the petitioner, has submitted that in all the ACRs of the petitioner for the past eight years, no adverse remarks have been communicated to him. The Departmental Promotion Committee (DPC) met to consider the names of the eligible candidates from amongst the Accounts Officer, Class-I to the post of Deputy Director (Accounts). The name of the petitioner was not considered in the said DPC as the remarks 'Good' for the years 2000-01, 2001-02, 2002-03, 2003-04 and 2004-05 were given an adverse connotation by the respondents. The said remarks have never been communicated to the petitioner. On the contrary, respondent No. 1 has stated that the remarks 'Good' cannot be considered as adverse. However, had that been the position, there would not have been any impediment in the way of the petitioner in being promoted from the date on which his juniors were promoted. It is submitted that it is a settled position of law that if the remarks 'Good' are adversely construed, they have to be communicated to the petitioner and, therefore, they ought not to be considered. In support of this submission, learned counsel for the petitioner has relied upon the following judgments: (1) Dev Dutt Vs. Union of India and others reported in (2008) 8 SCC 725 (2) Abhijit Gosh Dastidar Vs. Union of India and others reported in (2009) 16 SCC 146 (3) Sukhdev Singh Vs. Union of India and others reported in (2013) 9 SCC 566 (4) Prabhu Dayal Khandelwal Vs. Chairman, U.P.S.C. & Ors. Union of India and others reported in (2008) 8 SCC 725 (2) Abhijit Gosh Dastidar Vs. Union of India and others reported in (2009) 16 SCC 146 (3) Sukhdev Singh Vs. Union of India and others reported in (2013) 9 SCC 566 (4) Prabhu Dayal Khandelwal Vs. Chairman, U.P.S.C. & Ors. reported in AIR 2015 SC 3057 . 3.1 On the strength of the above submission, it is prayed that the petition be allowed. 4. Mr. Niraj Ashar, learned Assistant Government Pleader has opposed the grant of prayers made in the petition by submitting that the petitioner is required to have five remarks of 'Very Good', therefore, he has rightly not been considered fit for promotion by the DPC which met on 29.01.2009. 4.1 It is further submitted that the amendment in the Gujarat Civil Services (Classification and Recruitment) Rules, 2005 ("the Rules" for short) has been made by a Notification dated 29.10.2005, whereby the benchmark for promotion to a Class-I posts has been raised from 'Good' to 'Very Good'. These Rules were challenged in another petition by one Shri S.K. Kadri. This Court vide order dated 22.11.2006, passed in Special Civil Application No. 22734 of 2006 and cognate matters has upheld the challenge to the amendment in the Rules. The judgment of the learned Single Judge has been confirmed by the Division Bench in Letters Patent Appeal No. 1629 of 2006 and cognate matters vide judgment dated 28.06.2007. It is submitted that in the amended Rules, there is no provision for communicating the remark 'Good', therefore, the said remarks were not communicated to the petitioner. 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. This Court has heard learned counsel for the respective parties, perused the averments made in the petition and the other documents on record. 7. It is clear from the factual position on record that the Rules have been amended by the Government Notification dated 29.10.2005 whereby the benchmark for promotion of Class-I post has been raised from 'Good' to 'Very Good'. 7. It is clear from the factual position on record that the Rules have been amended by the Government Notification dated 29.10.2005 whereby the benchmark for promotion of Class-I post has been raised from 'Good' to 'Very Good'. The DPC has, therefore, considered the enhanced benchmark that has resulted in ignoring the petitioner for promotion as he does not have the requisite number of remarks 'Very Good' for the past eight years. The five uncommunicated 'Good' remarks have come in the way of the petitioner, marring his chances of promotion. 8. The position of law with regard to the issue whether the remark 'Good' has to be communicated to the Officer or not, is now very clear after the enunciation of law by the Supreme Court in the case of Dev Dutt Vs. 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. This judgment has been considered and confirmed by a Larger Bench of the Supreme Court in the case of Sukhdev Singh Vs. Union of India and others (supra), as below: "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. 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." 10. Further, in the case of Abhijit Gosh Dastidar Vs. Union of India and others (supra), the Supreme Court has reiterated the same principles of law 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. 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." 11. In a recent judgment in the case of Prabhu Dayal Khandelwal Vs. Chairman, U.P.S.C. & Ors. (supra), after considering the entire law on the issue and quoting the judgments in the cases of Dev Dutt Vs. Union of India and others (supra) and Sukhdev Singh Vs. Union of India and others (supra), 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." 12. If the case of the petitioner is examined on the touchstone of the principles of law laid down by the Supreme Court in the above judgments, it emerges that the failure on the part of the respondents in communicating the remarks 'Very Good' to the petitioner has resulted in depriving him of consideration for being promoted to the post of Deputy Director (Accounts). The enhanced benchmark of 'Very Good' from the earlier benchmark 'Good', that has been stipulated in the amended Rules, has resulted in an adverse connotation being given to the remark 'Good'. 13. Learned Assistant Government Pleader has submitted that the Notification dated 29.10.2005, by which the Rules have been amended, was challenged before this Court but the challenge has been negatived. This notification does not provide for the communication of the 'Good' remarks to the concerned employee. This submission cannot stand in light of the principles of law laid down by the Supreme Court in this regard. The other submission that the petitioner has rightly not been considered for promotion by the DPC as he did not have the requisite five 'Very Good' remarks in the past eight years, is also without substance as it was incumbent upon the respondents to have communicated the 'Good' remarks to the petitioner in the first place, in order to give him an opportunity to represent against them. Denying him this opportunity would constitute a violation of the principles of natural justice. 14. Viewed from all angles, the case of the petitioner deserves to succeed. Hence, this Court considers it just and appropriate to pass the following order: The respondents are directed to consider the case of the petitioner for promotion to the post of Deputy Director (Accounts) with effect from 26.05.2009, the date on which the juniors of the petitioner were promoted, without considering the uncommunicated adverse entries in his ACR's, with all consequential and incidental benefits such as promotion and other permissible benefits. The entire exercise be completed as expeditiously as possible and without avoidable delay. 15. The petition is allowed, in the above terms. Rule is made absolute, accordingly. There shall be no orders as to costs.