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2016 DIGILAW 537 (UTT)

Ravindra Pal Singh Negi v. State of Uttarakhand

2016-09-01

K.M.JOSEPH, V.K.BIST

body2016
JUDGMENT : K.M. Joseph, J. Petitioner was appointed as a Medical Officer on 27.04.1991 through the Public Service Commission. He had an occasion to approach this Court earlier and Annexure – 6 is the first judgment. In the said judgment, the issue was as follows: Departmental Promotion Committee had sat on 25th June, 2007 for promotion of Ordinary Grade doctors working in the Government to Selection Grade doctors. In regard to the petitioner, his ACRs for the period 1996-1997 to 2001-2002 were not available. Petitioner relied on Government Order dated 23rd June, 2003, which, inter alia, provided that if the confidential reports are not available for any year, the same should be treated as blank and, thereupon, decision should be taken to ascertain, whether the candidate concerned is or is not suitable for being promoted. The writ petition was allowed as follows: “2. We, accordingly, allow the writ petition and direct the Government to hold a Departmental Promotion Committee exclusively for the petitioner within a month from today to consider the case of the petitioner for promotion as on 25th June, 2007 and apply the provisions of the Government Order dated 23rd June, 2003 in relation to A.C.Rs. of the petitioner, which are not available. In the event, it is found that the petitioner is suitable for being promoted, he must be given the notional effect of his promotion from the date others, who were found fit for being promoted pursuant to the Departmental Promotion Committee held on 25th June, 2007. Though the petitioner shall not be entitled to monetary benefit of the said promotion during the notional period, but the notional period must be counted for the purpose of determination of eligibility for the next promotion. In the event, anyone, who was promoted pursuant to the Departmental Promotion Committee held on 25th June, 2007 has been promoted to the next level, a further Departmental Promotion Committee within one month must be held exclusively for the petitioner in order to consider him for promotion to the said post.” 2. Petitioner was driven again to this Court consequent upon the order dated 07.08.2013. In the judgment, which resulted therefrom, it is ordered as follows: “7. Petitioner was driven again to this Court consequent upon the order dated 07.08.2013. In the judgment, which resulted therefrom, it is ordered as follows: “7. In such circumstances, the adverse entries, which are not communicated to the petitioner, must be communicated; petitioner must be given an opportunity to represent against the same; a decision must be taken thereon; and the D.P.C. must be convened thereafter. Accordingly, the writ petition is disposed of as follows: i. The order dated 07.08.2013, rejecting the case of the petitioner for promotion as Joint Director, will stand quashed. ii. We notice that the entries for the years 2003-2004, 2005-2006, 2006-2007, 2008-2009 & 2009-2010 should have been communicated and his representation should have been considered; but, that was not done. We allow the petitioner three weeks’ time from today to represent against the entries for the aforesaid years, as they appear in the counter affidavit, and the said representation will be made to respondent No. 2, i.e. Director General, Medical Health & Family Welfare. Respondent No. 2 will consider the said representation and take a decision thereon in accordance with law within a period of one month from the date of receipt of the representation. Thereafter, a review D.P.C. will be held to consider the case of the petitioner for promotion to the post of Joint Director on the basis of the decision taken by respondent No. 2 on the representation. The review D.P.C. will be held within a period of three months from the date of decision on the representation.” 3. Pursuant to the same, petitioner represented against the entries in question. The order was passed on 22.06.2015. Further, the DPC considered the matter and the order dated 31.08.2015 was passed, by which the claim of the petitioner was rejected. Hence, the petitioner has sought the following prayers: “1. Issue writ rule or direction in the nature of certiorari quashing the order dated 22.06.2015 in league with the order dated 31.08.2015 passed by the respondent no. 2 to along with its effect and operation also after calling the entire records from the respondents. 2. Hence, the petitioner has sought the following prayers: “1. Issue writ rule or direction in the nature of certiorari quashing the order dated 22.06.2015 in league with the order dated 31.08.2015 passed by the respondent no. 2 to along with its effect and operation also after calling the entire records from the respondents. 2. Issue writ rule or direction in the nature of mandamus directing the respondents to consider the case of the petitioner for promotion on the post of Joint Director w.e.f. the date i.e. 14.01.2010 when the same was recommended and given to the Juniors to the petitioner by reviewing the DPC along with all consequential benefits had it been the impugned orders were never in existence and also to consider the case of the petitioner for promotion by upgrading all the entries which are treated as downgraded and having adverse effect in respect of bench mark alongwith all consequential benefits. 3. Issue writ rule, direction or declaration appropriate in the nature directing for damages in tune of Rs. Two crores to the petitioner and be recovered from the respondents and erring officer who instrumental for such type of tortuous and malicious act which caused prejudice and harm to the petitioner.” 4. Heard Sri Kishore Kumar, learned counsel for the petitioner and Sri H.M. Bhatia, learned Brief Holder for the State. 5. During the pendency of the writ petition, the case was set up that there was no answer to the allegations made in paragraph nos. 22 and 23 of the writ petition (See Order dated 13.07.2016). Order dated 13.07.2016 reads as follows: “Mr. Kishore Kumar and Mr. N.K. Papnoi, Advocates for the petitioner. Mr. Pradeep Joshi, Standing Counsel and Ms. Puja Banga, Brief Holder for the State of Uttarakhand. Heard learned counsel for the parties. The complaint of the petitioner appears to be that the juniors of the petitioner were promoted as Joint Director taking into consideration the entries from the year 1999-2000 onwards for a period of ten years and thus, they were considered for 2010-2011. Had the similar exercise been conducted, the petitioner would have obtained average of 6 marks and thus, he would have been entitled to be promoted. Learned Standing Counsel would submit that there is no answer to the allegations made in paragraph nos. 22 and 23 of the writ petition. Had the similar exercise been conducted, the petitioner would have obtained average of 6 marks and thus, he would have been entitled to be promoted. Learned Standing Counsel would submit that there is no answer to the allegations made in paragraph nos. 22 and 23 of the writ petition. In the circumstances, supplementary counter affidavit be filed by the learned Standing Counsel within two weeks from today, clarifying this position and also stating, in regard to the juniors to the petitioner, who were promoted in 2010-2011, the entries were taken of which years. List this matter on 12.08.2016.” 6. Pursuant to that order, an affidavit was filed. Therein, it was, inter alia, mentioned as follows: “3. That the present supplementary affidavit is now being filed and it is being stated that the petitioner had filed the writ petition dated 25.06.2007 for promotion to the post of senior grade medical officer from the post of general grade medical officer. (A) That for the promotion to the posts of senior grade medical officer, the name of the petitioner was included in the eligibility list. But due to incomplete ACR (Annual Confidential Report) of the petitioner from the year 1996-97 to 2001-02, his promotion had been postponed. Later on when it was discovered that the petitioner was not finally allotted by Government of India to the State of Uttarakhand, his future promotions were also not considered. Due to uncertainty in the allocation of the petitioner, he was not considered for promotion and the persons junior to the petitioner were promoted to the post of Joint Director. (B) That through an order dated 01.02.2013 of Government of India 23 medical officers including the petitioner were allocated to the State of Uttarakhand. The order of seniority was considered on the basis of office order dated 30.04.2013 of allocated medical officers. A copy of allocation order dated 01.02.2013 is being filed herewith and marked as Annexure No. SA-1 to this affidavit. (C) That the seniority of the petitioner under PMHS category could not be determined while the meeting dated 14.01.2010 of Departmental Promotion Committee was held therefore he was not considered for promotion to the post of Joint Director. A copy of allocation order dated 01.02.2013 is being filed herewith and marked as Annexure No. SA-1 to this affidavit. (C) That the seniority of the petitioner under PMHS category could not be determined while the meeting dated 14.01.2010 of Departmental Promotion Committee was held therefore he was not considered for promotion to the post of Joint Director. (D) That in reference to the statements made in Para 22 and 23 the details of annual Confidential Report of the petitioner, from the year 1999-2000 to 2008-09 as per the Departmental Promotion Committee meeting dated 14.01.2010 are as follows: S.N. Name of Medical Officer Description of 10 years A.C.R. Comment 99-00 00-01 01-02 02-03 03-04 04-05 05-06 06-07 07-08 08-09 1 2 3 4 5 6 7 8 9 10 11 12 13 01 Dr. R.P.S. Negi ACHHA (Uttam) Attiuttam Recognized ACR Attiuttam ACHHA (Uttam) Attiuttam Uttam ACHHA (Uttam) (Adverse) Not communicated ACHHA (Uttam) o"kZ 2001-&2 dh iquxZfBr izfof"V ds LFkku ij o"kZ 1998&99 dh mRre izfrf"V rFkk o"kZ 2007&8 dh [kjkc izfof"V ds LFkku ij o"kZ 1997&98 dh vPNk ¼mRre½ dh ewY;kafdr fd;s tkus ds vk/kkj ij Mk0 usxh ds dqy izkIrkad ¾ 59@10 ¾ 5-9 (E) That after considering the ACR of the petitioner from the year 1999-2000 to 2008-2009, the petitioner has been classified under unsuitable category. Since the post of Joint Director is the senior post and the petitioner has been classified under unsuitable category, he could not be promoted to the post in question. A copy of ACR of the petitioner from the year 1999-2000 to 2008-2009 is being filed herewith and marked as Annexure No.SA-2 to this affidavit.” 7. To the same, the petitioner filed a rejoinder affidavit. 8. The short argument, which is addressed before us by the petitioner is as follows: Following the first judgment, the petitioner was given the first promotion in the year 2007. Further promotion relates to the year 2010, which was effected in the year 2010 as far as his juniors were promoted. Therefore, he would submit, under the first judgment, the Department was obliged to consider his case. In doing so, the Department was further obliged to take entries for the years 1999-2000 to 2008-2009. In regard to 2001-2002, the entry must be treated as blank and, therefore, ‘O’ marks would be earned by him. Therefore, he would submit, under the first judgment, the Department was obliged to consider his case. In doing so, the Department was further obliged to take entries for the years 1999-2000 to 2008-2009. In regard to 2001-2002, the entry must be treated as blank and, therefore, ‘O’ marks would be earned by him. For the year 2007-08 also, as there was uncommunicated adverse entry, that would be ignored. The resultant position is that he has obtained marks only for 8 out of the 10 years beginning from 1999 -2000. If the average of the 8 years is taken, then the petitioner would secure more than six marks, which would render him suitable for promotion. 9. On the other hand, the case of Sri H.M. Bhatia, learned Brief Holder is that taking the entries from 1999-2000 for the period of 10 years, the petitioner secured 49 marks. This has to be divided by 10. The reason being the number of years, for which the ACR has to be reckoned to consider the suitability of the candidates, is 10. For 2001-2002 and for 2007-2008, petitioner does not secure any marks. They are to be treated as blank under the Government Orders and, therefore, the respondents had calculated it as follows: 49 divided by 10 will be 4.9. They added five marks each for the two years on the average and it became 59 divided by 10. The resultant figure was less than 6. 10. On the other hand the case of the petitioner is that the relevant provision, about the applicability of which there is no dispute, contemplates taking the average of the figures available and if that is done, the denominator must be 8 as the entries available are for 8 years. In order to resolve this bone of contention between the parties, we must necessarily advert to the relevant Clause 28- admittedly the Clause, which we have to consider. Clause 28 reads as follows: “(28) If from the eligibility list any personnel of some duration/year annual entries are not received/available then not received/unavailable yearly entries be marked blank and on the basis of available entries/documents (on the average basis). Appropriate evaluation be made in regard to such personnel.” 11. Clause 28 reads as follows: “(28) If from the eligibility list any personnel of some duration/year annual entries are not received/available then not received/unavailable yearly entries be marked blank and on the basis of available entries/documents (on the average basis). Appropriate evaluation be made in regard to such personnel.” 11. Sri H.M. Bhatia, learned Brief Holder sought to rely upon paragraph 4 of the judgment of the Hon’ble Apex Court in the case of Harbans Kumari and others vs. State of Uttar Pradesh reported in (1979) 2 SCC 239 , which reads as under: “4. It will be noticed that the opening words of the above quoted section which is couched in very emphatic terms govern not only clause (i) but also clause (ii) of Section 39 (1)(e) of the Act. Consequently neither of the two factors mentioned in Section 39(1) (e) of the Act can be ignored while computing the average annual income. Now so far as the connotation of the word ‘average’ is concerned, it does not admit of any doubt. According to Shorter Oxford English Dictionary, the word ‘average’ means ‘arithmetical mean : to estimate by dividing the aggregate of a series by the number of its units’. The same is the connotation of the word ‘average’ according to the Random House Dictionary of the English Language where the total receipt has been stated to mean the total receipt from sales divided by the number of the units sold.” 12. It is necessary to notice the context, in which the question arose. The question was under the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950. The question was the method to be employed for computing the compensation payable under the Act on the vesting of forest in the State of Uttar Pradesh under Section 4 of the Act. 13. The argument, which was addressed on behalf of the appellant, may be noticed as in paragraph 3 of the judgment, which reads as follows: “3. Mr. Lal Narayan Sinha appearing on behalf of the appellants has raised a very short point. 13. The argument, which was addressed on behalf of the appellant, may be noticed as in paragraph 3 of the judgment, which reads as follows: “3. Mr. Lal Narayan Sinha appearing on behalf of the appellants has raised a very short point. Assailing the method adopted by the High Court in computing the compensation, he has urged that the High Court has missed the real purport and meaning of the provisions relating to the computation of compensation and that the relevant portion of Section 39 of the Act did not authorize the High Court to calculate the compensation by taking a mean of the aforesaid two figures. He has further urged that having worked out the average annual income according to the method indicated in clause (i) of Section 39(1)(e) of the Act, the High Court was not required to work out the annual yield of the forest on the date of vesting. We regret we cannot accede to this contention. Section 39(1) (e) of the Act provides as follows: 39. Gross assets of a mahal.—(1) Gross assets as respects a mahal shall be the aggregate gross income of the land or estate comprised in the mahal and such income shall comprise – (e) average annual income from forests, which shall be computed— (i) on the basis of the income for a period of twenty to forty agricultural years immediately preceding the date of vesting as the Compensation Officer may consider reasonable ; and (ii) on the appraisement of the annual yield of the forest on the date of vesting.” 14. It is also necessary to notice the reasoning of the Hon’ble Apex Court, as found in Paragraph 5 of the judgment, which reads as follows: “5. On a true construction of Section 39(1)(e) of the Act, it appears to us that the Legislature cast an obligation on the Compensation Officer to work out the compensation by computing the average annual income giving due weight to both the factors mentioned in the aforesaid clauses (i) and (ii). Accordingly, we are of the view that the High Court was correct in computing the average income by adding up the two figures, i.e. of Rs. 4551 and Rs. 2000 and arriving at a mean on that basis. Accordingly, we are of the view that the High Court was correct in computing the average income by adding up the two figures, i.e. of Rs. 4551 and Rs. 2000 and arriving at a mean on that basis. The position is also not res integra as in Smt. Durgi Devi v. State of U.P. (1978) 3 SCC 101 , this Court held that the average annual income has to be arrived at by taking into consideration not only the income referred to in clause (i) of Section 39(1)(e) but also the estimated annual yield of the forest on the date of vesting. The following observations made therein are apposite: (p. 110, para 18) A plain reading of clause (e) of Section 39(1) shows that its sub clauses (i) and (ii) do not provide for two alternative methods of calculating the average annual income of the forest. The conjunction “and” at the end of sub-clause (i) cannot be read as “or”. It conjoins the two sub-clauses, and in effect, read in the context of “shall” in the opening part of clause (e), mandates the compensation officer to take both the factors into consideration in assessing the average annual income from the forest. The reason why the Legislature has made compliance with the requirement of this sub-clause (ii), also, obligatory, appears to be to ensure that the compensation assessed has a reasonable nexus and proportion to the actual and potential value of the forest as on the date of vesting. If a forest has been repeatedly, wholly and indiscriminately exploited within forty years or less immediately before the vesting, its actual and potential value as a forest on the date of the vesting might be far less than the one calculated on the basis of its average annual income of the preceding 20 to 40 years as the case may be. In such a case, average annual income calculated merely on the basis of the income for a period of 20 to 40 years preceding the vesting, may cause fortuitous inflation in the assessment of compensation. In such a case, average annual income calculated merely on the basis of the income for a period of 20 to 40 years preceding the vesting, may cause fortuitous inflation in the assessment of compensation. Conversely, if a forest has been very little exploited in the preceding forty years and is well-preserved and well-developed on the date of vesting then calculation of its average annual income on the basis of sub-clause (i) alone, without taking into account its potential yield on the date of the vesting, will make the compensation assessed wholly illusory, having no relation whatever to the value of the forest as at the date of vesting. Entry of the apprised annual yield of the forest on the date of vesting, into computation under clause (e), operates as a counterpoise against fortuitous inflation and deflation in the assessment.” 15. We would think that this judgment cannot assist the learned Brief Holder Sri H.M. Bhatia in persuading us to hold that the average must be determined by taking the number of units as 10 as he puts it, as the number of years is 10. 16. The Clause, which we are called upon to construe, contemplates a situation, where entries are not available in the ACR for a year or more than a year. In such a situation, the marks obtained must be determined with reference to the available entries. Averaging is a method, which is used in various situations. In the present scenario, averaging is contemplated when there are no entries made for certain years in the ACRs, which will result in the employee being given no marks or ‘O’ marks. It has to be noticed that it is clear that the employee is not to be blamed when he is not given any marks. It may be as a result of the concerned officer not making any entry, which is not the fault of the employee. It may also be the result of an adverse entry, which is not communicated, for which also, the blame will not lie on the doorstep of the employee. Therefore, in this context, if we were to accept the contention of Sri H.M. Bhatia, the result would be plain inequity and injustice to the employee. It may also be the result of an adverse entry, which is not communicated, for which also, the blame will not lie on the doorstep of the employee. Therefore, in this context, if we were to accept the contention of Sri H.M. Bhatia, the result would be plain inequity and injustice to the employee. This is for the reason that on the basis of the principle of averaging, the numerator will remain the same as ‘O’ marks being added to the numerator any number of times will not increase the figure. The denominator being the number of years, even for which no marks are available, will increase. Resultantly, the marks obtained by the employee will be considerably lowered. It has to be noticed that, as already reasoned by us, this is where the employee is blameless. We would not think that such an interpretation is in consonance with the language of Clause 28. In fact, Clause 28 expressly provides for taking the average on the basis of the available entries. Therefore, the intention was to reckon the marks on the basis of the entries, which are available, meaning for the years, in which some marks can be awarded on the basis of the entries. Averaging in mathematics essentially is nothing other than the arithmetic mean. It is to be arrived at by totaling the numbers and then, dividing it by the sum of the numbers, which is called the count. In this case, the years where marks are available is 8. Therefore, the count can also be only 8. The view, we take, is clearly supported by the use of the ‘available’ before the word ‘entries’. We also notice the injustice that would flow, if we take contrary view. Therefore, we are of the view that on the basis of ACRs for the period 1999 onwards for a period of ten years, the petitioner would, undoubtedly, secure more than six marks, if average is taken for 8 years. 17. The upshot of the above discussion is that the petitioner must succeed. Accordingly, the writ petition is allowed and the order dated 31.08.2015 passed by respondent no. 2 is quashed. There will be a direction to the first respondent to convene a Review Departmental Promotion Committee and consider the case of the petitioner for promotion on the post of Joint Director from the date on which the juniors were recommended. Accordingly, the writ petition is allowed and the order dated 31.08.2015 passed by respondent no. 2 is quashed. There will be a direction to the first respondent to convene a Review Departmental Promotion Committee and consider the case of the petitioner for promotion on the post of Joint Director from the date on which the juniors were recommended. This exercise should be completed within a period of two months from the date of production of a certified copy of this judgment.