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2016 DIGILAW 1629 (GUJ)

B. I. Raval v. State of Gujarat

2016-08-04

ABHILASHA KUMARI

body2016
JUDGMENT : Abhilasha Kumari, J. 1. This petition under Article 226 of the Constitution of India has been preferred with a prayer to quash and set aside the communication dated 07.04.2011, issued by respondent No. 2, as well as the recommendation of the Departmental Promotion Committee ("DPC") dated 10.02.2011, whereby the petitioner has been declared unfit for promotion to the post of Deputy Director (Training), Class-I. The petitioner has further prayed for directions to the respondent authorities to grant the deemed date of promotion to him with effect from 03.01.2012, that is, from the date when the juniors of the petitioner were promoted, with all consequential benefits and interest at the rate the Court may consider proper. 2. The brief facts of the case are as follows: The petitioner participated in the selection for the post of Deputy Inspector, Class-II, and having been found suitable by the Gujarat Public Service Commission ("GPSC"), was appointed as such on 28.03.1987. Thereafter, the petitioner was promoted as Principal, in the cadre of Assistant Director (Training) Class-I, on 22.07.1993. On the date of the filing of the petition, the petitioner was holding the post of Assistant Director (Training) in the office of respondent No. 4 Director of Employment and Training. 3. According to the petitioner, the next promotional post was that of Deputy Director (Training), Class-I. The petitioner fell within the zone of consideration for promotion to the said post. The DPC met on 10.02.2011 and made its recommendations, finding the petitioner unfit for promotion. The recommendations of the DPC were communicated by the State Government to respondent No. 5, by the impugned communication dated 07.04.2011. 4. The Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 ("the Rules"), were amended by a Notification dated 29.10.2005. By way of the said amendment, the benchmark for promotion to a Class-I post has been enhanced from 'good' to "very good". It is provided that officers who are graded as 'good' or 'unfit' shall not be included in the select-list for promotion. On the basis of this Notification, the State Government issued a Government Resolution dated 29.10.2005, in consonance with the said amendment in the Rules. It is provided that officers who are graded as 'good' or 'unfit' shall not be included in the select-list for promotion. On the basis of this Notification, the State Government issued a Government Resolution dated 29.10.2005, in consonance with the said amendment in the Rules. The petitioner was found unfit for promotion for the reason that he did not fulfill the enhanced benchmark of having five 'very good's in his Annual Confidential Report ("ACR") for the last eight years, which were required for him to be considered for promotion. 5. It is the case of the petitioner that in his ACR for the year 2003-04, two remarks of 'good' for three months twenty six days and three months sixteen days, respectively were not communicated to him. Further, in the year 2005-06, one remark of 'good' for six months sixteen days, was not communicated to him. Further, for the entire years 2006-07, 2007-08 and 2008-09, one remark of 'good' for each year, were not communicated. Lastly, in year 2009-10, one remark of 'good' for seven months and eleven seven days remained uncommunicated to the petitioner. In all, 'good' remarks covering a period of four years two month and twenty seven days remained uncommunicated to the petitioner from the year 2002-03 to 2009-10, constituting eight years, which was required to be considered by the DPC. 6. It is the case of the petitioner that for most of the above period under consideration, the petitioner has been assessed as 'good', which remarks were never communicated to him. As per the enhanced benchmark pursuant to the amendment in the Rules, the remark 'good' is required to be communicated to the petitioner as such a remark would mar the chances of promotion and would be considered adverse. As the said remarks have not been communicated to the petitioner, they ought not to have been considered. Aggrieved by the consideration of the above 'good' remarks that were uncommunicated and have ruined his chances of promotion, resulting in the impugned communication, the petitioner has approached this Court. 7. Mr. Dipen A. Desai, learned advocate for the petitioner, has submitted that the petitioner has attained the age of superannuation on 31.03.2012. Aggrieved by the consideration of the above 'good' remarks that were uncommunicated and have ruined his chances of promotion, resulting in the impugned communication, the petitioner has approached this Court. 7. Mr. Dipen A. Desai, learned advocate for the petitioner, has submitted that the petitioner has attained the age of superannuation on 31.03.2012. Though one of the prayers made in the petition is regarding the challenge to the orders of promotion passed in the case of his juniors, the petitioner does not press this prayer at this stage and would only request the Court to grant the prayer regarding the deemed date of promotion. 8. It is submitted that the State Government has issued several Circulars, whereby several instructions have been issued to its officers regarding the procedure and manner in which the ACRs of the concerned employee are to be written. One such Circular is dated 11.12.1996. Clear instructions have been given laying down a specific time-limit for the communication of the adverse entries. From the first stage to the last, specific time-limits have been laid down by the State Government. In the case of the petitioner, it is clear from the letter dated 30.06.2008 of the State Government, addressed to the superior officer of the petitioner, that the ACRs of the petitioner for the years 2004-05, 2006-07 and 2007-08 were not received by it, though the petitioner was eligible for promotion since the year 2001. The State Government has given the list of all those persons whose ACRs have not been written. The name of the petitioner is at Sr. No. 5 of the said communication. This shows the casual manner adopted by Reviewing Officers in writing the ACR of the petitioner. After about six to seven years, it stands to reason that memory would fade and the writing of the ACRs by the Reviewing Authority would become a mere formality. The Reviewing Authority has not followed the instructions of the State Government contained in the Government Resolution dated 11.12.1996 in this regard. 9. It is submitted that in the present case, 'good' remarks would be considered adversely in the context of the promotional chances of the petitioner, in view of the enhanced benchmark. Therefore, the entries of 'good' were also required to be communicated to the petitioner within the stipulated period of time. 9. It is submitted that in the present case, 'good' remarks would be considered adversely in the context of the promotional chances of the petitioner, in view of the enhanced benchmark. Therefore, the entries of 'good' were also required to be communicated to the petitioner within the stipulated period of time. Apart from that, the ACR of the petitioner was also required to be written within the time-limit prescribed for the said purpose as per the instructions of the State Government. However, it has been reduced to an empty exercise. As the said remarks have not been communicated to the petitioner, as per law laid down by the Supreme Court in several judgments, the said remarks cannot be considered. 10. In support of the above submissions, reliance has been placed on the following judgments: (i) Dev Dutt Vs. Union of India and others reported in (2008) 8 SCC 725 (ii) Abhijit Gosh Dastidar Vs. Union of India and others reported in (2009) 16 SCC 146 (iii) Sukhdev Singh Vs. Union of India and others reported in (2013) 9 SCC 566 (iv) Prabhu Dayal Khandelwal Vs. Chairman, U.P.S.C. & Ors. reported in AIR 2015 SC 3057 11. On the above grounds, learned counsel for the petitioner has prayed that the petition be allowed. 12. Mr. Niraj Ashar, learned Assistant Government Pleader, has submitted that by virtue of the Government Resolution dated 31.03.1989, 'good' remarks are not required to be communicated to the concerned employee. A copy of this Government Resolution has been annexed with the affidavit-in-reply filed by the State Government. It is further submitted that the remarks 'good' are not to be treated as adverse remarks, therefore, for this reason as well, they are not required to be communicated to the petitioner. 13. It is further submitted that by virtue of the Government Resolution dated 29.10.2005, the benchmark for promotion to a Class-I post has been upgraded to 'outstanding' and "very good". The petitioner is required to have a minimum of five "very good" or 'outstanding' remarks in the ACRs of the past eight years in order to be considered for promotion. However, the petitioner did not meet the said benchmark, therefore, he has rightly not been considered for promotion. 14. The petitioner is required to have a minimum of five "very good" or 'outstanding' remarks in the ACRs of the past eight years in order to be considered for promotion. However, the petitioner did not meet the said benchmark, therefore, he has rightly not been considered for promotion. 14. It is submitted that the challenge to the Government Resolution dated 29.10.2005, has been negatived by this Court in Special Civil Application No. 22734 of 2006 and connected matter by judgment dated 22.11.2006 by this Court [Coram: R.M. Doshit, J. (as Her Ladyship then was)]. The judgment of this Court has been affirmed by a Division Bench in Letters Patent Appeal No. 1629 of 2006 and connected appeal in Special Civil Application No. 22734 of 2006 and connected petition by judgment dated 28.06.2007. The SLP against the order of the Division Bench has been rejected by the Supreme Court. Nowhere in the said Government Resolution has it been stated that the remarks of 'good' are to be communicated to the employee, therefore, the non-communication of the said remarks would not vitiate the recommendation of the DPC. 15. Mr. Premal R. Joshi, learned advocate for respondent No. 5 - GPSC submits that he would adopt the arguments advanced by the learned Assistant Government Pleader. 16. In the above context, this Court has heard learned counsel for the respective parties, perused the averments made in the petition and other documents on record. 17. The case of the petitioner is that the uncommunicated remarks of 'good' in his ACR for the assessment period in question that have led to his non-consideration for promotion should not be considered and his case ought to be considered for promotion on the basis of the "very good" remarks in the said ACRs as per the law laid down by the Supreme Court in the judgments relied upon by him. It would, therefore, be fruitful to advert to the said judgments. 18. In the case of Dev Dutt Vs. Union of India and others (supra), the Supreme Court has held as below: "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. 18. In the case of Dev Dutt Vs. Union of India and others (supra), the Supreme Court has held as below: "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." (emphasis supplied) 19. The above case would squarely cover the case of the petitioner as the same situation prevails in the present case. The 'good' entries made in his ACRs have, in fact, been considered negatively and have marred the chances of promotion in view of the raised benchmark pursuant to the amendment in the Rules. As such, the said entries ought to have been communicated to the petitioner. The failure to do so would render the action of the respondents illegal. In the very same judgment, the Supreme Court has further held as below: "35. Thus natural justice has an expanding content and is not stagnant. As such, the said entries ought to have been communicated to the petitioner. The failure to do so would render the action of the respondents illegal. In the very same judgment, the Supreme Court has further held as below: "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. requiring 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 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 concerned authority, and the concerned authority 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 conducive 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." 20. The judgment in the case of Dev Dutt Vs. Union of India and others (supra) came to be considered by a Larger Bench of the Supreme Court in Sukhdev Singh Vs. Union of India and others (supra), wherein it has been held as below: "8. Only then would good governance be possible." 20. The judgment in the case of Dev Dutt Vs. Union of India and others (supra) came to be considered by a Larger Bench of the Supreme Court in Sukhdev Singh Vs. Union of India and others (supra), wherein it has been held as below: "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." (emphasis supplied) 21. Further, in the case of Abhijit Gosh Dastidar Vs. Union of India and others (supra), the Supreme Court has referred to the case of Dev Dutt Vs. Union of India and others (supra), and reiterated the principles of law regarding the non-communication of the adverse entries in the ACRs of a public servant (with the exception of armed forces) and has held that the said non-communication results in civil consequences as it would affect the promotion and other benefits of the said employee. The relevant extract of the said judgment is reproduced hereinbelow: "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 relevant extract of the said judgment is reproduced hereinbelow: "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." (emphasis supplied) 22. The above judgment in the case of Abhijit Gosh Dastidar Vs. Union of India and others (supra), has also been referred to by the Division Bench in the case of Sukhdev Singh Vs. Union of India and others (supra). 23. The above position of law has remained consistent throughout and in a recent judgment of the Supreme Court in the case of Prabhu Dayal Khandelwal Vs. Chairman, U.P.S.C. & Ors. (supra), the Apex Court has arrived at the following conclusion: "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." (emphasis supplied) 24. 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." (emphasis supplied) 24. In the view of this Court, the above enunciation of law by the Supreme Court would be squarely applicable to the case of the petitioner. In the present case, after the enhancement of the benchmark pursuant to the amendment in the Rules, the petitioner would have required a minimum of five "very good" remarks in the ACRs of the past eight years in order to be considered for the promotion to the next higher post. The entries of 'good' in the said ACRs would be considered negatively in view of the enhanced benchmark. It is due to the said entries that the petitioner has been ignored and found unfit for promotion. There is no denial to the fact that the entries of 'good' have never been communicated to the petitioner at any point of time. Being detrimental to the promotional chances of the petitioner, it was required of the respondents to have communicated the said entries to him. As this was not done, the petitioner has been denied promotion in a manner that is not in consonance with the settled principles of law. 25. As has been held by the Supreme Court in Abhijit Gosh Dastidar Vs. Union of India and others (supra), any remark having a negative or adverse connotation would reduce the chances of promotion of an employee resulting in civil consequences. Besides this, the principles of natural justice would be violated on account of the failure on the part of the respondents in communicating entries that had been considered adversely even though such entries may be 'good' as held by the Supreme Court in Dev Dutt Vs. Union of India and others (supra). 26. Learned Assistant Government Pleader has submitted that in the Government Resolution dated 29.10.2005, there is no provision for the communication of entries of 'good' to the concerned employee. According to him, this Government Resolution has been confirmed in the litigation before this Court and the Supreme Court. Union of India and others (supra). 26. Learned Assistant Government Pleader has submitted that in the Government Resolution dated 29.10.2005, there is no provision for the communication of entries of 'good' to the concerned employee. According to him, this Government Resolution has been confirmed in the litigation before this Court and the Supreme Court. The fact that the said Government Resolution was challenged and the challenge to this Resolution has been negatived is not relevant in the present matter. What is relevant is that as per the law of the land laid down by the Supreme Court, the entries of 'good' in the ACRs of the petitioner were required to be communicated to him as it is the case of the petitioner that these entries have been considered by the DPC to be adverse at the relevant point of time when his juniors were so promoted. 27. The reliance on the Government Resolution dated 31.03.1989, is also not relevant as at that point of time when it was issued, the Rules had not been amended and the benchmark had not been enhanced from 'good' to "very good", which has been done by the Notification dated 29.10.2005. Before the enhancement of the benchmark, the 'good' remarks continued to be good. However, after the enhancement of the benchmark, 'good' remarks would not have the same connotation and would be considered in a negative manner. Any remarks that have a negative connotation and have a potential of damaging the career of an employee are required to be communicated to him. Failure to do so would, in the view of this Court, invite similar directions as have been issued by the Supreme Court in Prabhu Dayal Khandelwal Vs. Chairman, U.P.S.C. & Ors. (supra), wherein it has been directed that the uncommunicated assessment of 'good' in the ACRs is not required to be taken into consideration. 28. In the above view of the matter, the only conclusion that can be arrived at, in view of the settled position of law is that, the petitioner is entitled to be considered for the deemed date of promotion to the post of Deputy Director (Training), Class-I, with effect from 03.01.2012, the date on which his immediate juniors were promoted. 29. In the above view of the matter, the only conclusion that can be arrived at, in view of the settled position of law is that, the petitioner is entitled to be considered for the deemed date of promotion to the post of Deputy Director (Training), Class-I, with effect from 03.01.2012, the date on which his immediate juniors were promoted. 29. The respondents are directed not to consider the uncommunicated entries of 'good' in the ACR's of the petitioner for the period under consideration, and to consider the case of the petitioner for promotion to the post of Deputy Director (Training), Class-I, with effect from 03.01.2012, as expeditiously as possible. 30. The petitioner shall be granted all the consequential benefits flowing from such promotion, whether financial, pensionary or otherwise, as expeditiously as possible and without avoidable delay. 31. The petition is allowed in the above terms. Rule is made absolute accordingly. There shall be no orders as to costs.