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2017 DIGILAW 1348 (GAU)

Rabindra Nath Kalita v. State of Assam

2017-10-24

NELSON SAILO

body2017
JUDGMENT AND ORDER : Heard Mr. J. Roy, the learned counsel for the writ petitioner and Mr. Y. Doloi, the learned Additional Advocate General for all the respondents. As the petitioner is the same in both the writ petitions and the issues also similar, they are both taken up together for disposal. 2. The case has a checkered history and therefore, narration of the brief facts of the case would be necessary at the outset. 3. The petitioner joined the State Public Works Department (PWD) as Assistant Engineer in the year 1983. He was promoted to the post of Assistant Executive Engineer in the year 1994 and thereafter as Executive Engineer in the year 2002. Subsequently, in the year 2013, he was promoted as Superintending Engineer (SE) w.e.f 16.02.2007. Having attaining the age of superanuation on 31st March, 2016 he has now retired from service from the post of S.E. 4. The controversy started in the year 2006-2007 when the petitioner and other similarly situated Executive Engineers on being deprived of their due promotions approached this Court by filing WP(C) Nos. 4932, 4933, 4934 and 4935/2006 besides WP(C) Nos. 246/2007 challenging the selection process that was held on 28.07.2006 for promotion to the post of SE from the post of Executive Engineer. The writ petitions were disposed of vide a common Judgment and order dated 14.12.2007 directing the respondents authorities to reassess the suitability of the petitioner as per the observation made therein. 5. Against the common Judgment and order dated 14.12.2007, the respondent authorities and the private respondents therein filed writ appeals before the Division Bench of this Court. Leaving aside the writ appeals filed by the State as well as the private respondents against the relief given to the petitioner in particular, the Division Bench was pleased to dismiss the other writ appeals. On further appeal before the Apex Court through SLP No. 20024/2008, the SLP was only dismissed vide order dated 25.08.2008. The writ appeals against the petitioner were then finally heard by the Division Bench and vide Judgment dated 24.06.2010, the same were dismissed and the respondents were directed to comply with the Judgment and order passed by the learned Single Judge on 14.12.2007. 6. The writ appeals against the petitioner were then finally heard by the Division Bench and vide Judgment dated 24.06.2010, the same were dismissed and the respondents were directed to comply with the Judgment and order passed by the learned Single Judge on 14.12.2007. 6. Despite the direction and a number of representations submitted by the petitioner, the respondents failed to comply with the direction as such the petitioner was compelled to file Contempt Case (C) No. 259/2011 alleging disobedience of Court’s direction. As a result the petitioner was temporarily promoted and allowed to officiate as SE, Kokrajhar Building Circle w.e.f taking charge which was subsequently made effective from 16.02.2007 vide notification dated 28.01.2013 and thereafter again modified to 12.02.2007. 7. The case of the petitioner is that although he was promoted retrospectively to the post of SE but similarly situated officers including his juniors were promoted as Additional Chief Engineer (Addl. C.E) and therefore according to him, he is entitled to be promoted as Addl. C.E w.e.f 21.01.2011. His representation dated 11.03.2013 amongst others having not been considered, the petitioner is again before this Court through the instant two writ petitions. 8. It is the case of the petitioner that he got his legitimate promotion to the rank of SE retrospectively after many years and likewise, he seeks for a direction to the respondents to consider his promotion to the post of Additional C.E. with retrospective effect from 21.01.2011 vide WP (C) No. 1843/2013. In his writ petition, he further prays that as one Shri. Budheswar Bora holding the post of Additional C.E, Dibrugarh, Eastern Zone, PWD (Roads) was due for superannuation on 01.04.2013 and therefore, he maybe allowed to hold the charge of Additional C.E on the superannuation of the officer mentioned. 9. In WP(C) No. 1567/2015, the petitioner has challenged the action of the respondent authorities in downgrading his ACR and also replacement thereof with that of a fresh one for the period 2007-08 and 2008-09 with the grading of “Good”. Besides this, his ACR for the period 2009-10 being accepted by an officer of a separate wing, the same also was irregular. Besides this, his ACR for the period 2009-10 being accepted by an officer of a separate wing, the same also was irregular. The petitioner also contends that his ACRs for the period 2010-11 and 2011-12 could not have been only graded as “Good” since he had performed outstanding services on being appointed as the Nodal Officer to submit Detailed Project Report (DPR) of Indo Bhutan Border Road under the Ministry of Home Affairs, New Delhi. In so far as the ACR of 2012-13 is concerned, his ACR was accepted “Good” on the alleged ground of disciplinary proceeding against him. With such claim, the petitioner has sought for setting aside the selection for promotion to the post of Additional C.E held on 03.01.2011 and 12.09.2013 and to have a fresh selection for vacancies occurring from 2010 onwards. 10. At this stage, it may be noticed that besides the two writ petitions being considered, the petitioner had also filed WP(C) No.7178/2013 challenging the penalty of censure and withholding of one increment with cumulative effect vide notification dated 22.08.2012 imposed upon him. He also filed WP(C) No.4200/2014 challenging the penalty of stoppage of his promotion for two years also imposed upon him vide order dated 09.05.2014. 11. The two writ petitions mentioned above were considered by this Court and upon finding that the penalties were imposed in violation of the principles of natural justice as well as in violation of the Assam Services (Discipline and Appeal) Rules, 1964, both the writ petitions were allowed vide judgment and order dated 16.02.2016 and 18.02.2016 respectively. Therefore, the only writ petitions filed by the petitioner pending as on date are admittedly the instant two writ petitions. 12. Although, the petitioner has prayed for his retrospective promotion to the post of Additional C.E. w.e.f. 21.01.2011, detail grounds for his claim are made in WP(C) No. 1657/2016. The details of his ACRs for the period from 2004-05 upto 2012-13 as sought by the petitioner although initially rejected by the SPIO, PWD was ultimately given to him with the interference of the Appellate Authority under the RTI Act, 2005. Upon perusal of the documents furnished to the petitioner, he found that for the period 2004-05, his ACR comprised of two (2) parts i.e (i) 01.04.2004-24.06.2004 and (ii) 28.07.2004-17.02.2005. Upon perusal of the documents furnished to the petitioner, he found that for the period 2004-05, his ACR comprised of two (2) parts i.e (i) 01.04.2004-24.06.2004 and (ii) 28.07.2004-17.02.2005. On the ACR, although the Recording Officer gave his assessment as “Outstanding”, the Accepting Authority without communication to the petitioner downgraded the assessment to “Very Good”. After the petitioner challenged the same through WP(C) No. 4934/2006, his grading was restored as “Outstanding”. 13. The ACR for the period 2005-2006 also comprised of two parts i.e. (i) 01.04.2005- 30.08.2005 and (ii) 02.09.2005-15.02.2006. For the entire period of 01.04.2005-31.03.2006, the Commissioner and Special Secretary, PWD (Building & NH) submitted the ACR of the petitioner but however, the petitioner had served under the said authority who was the then Chief Engineer, PWD National Highway only between 01.04.2005 - 30.08.2005. The ACR for the second part (02.09.2005-15.02.2006) was not placed and considered in the selection for the post of Additional C.E. held on 12.09.2013 although the petitioner was graded “Outstanding” by the Accepting Authority. 14. The ACR for the period 01.04.2006 - 31.03.2007 was assessed as “Outstanding” by the Recording Officer but the Reviewing Officer gave the grading as only “Very Good”. Since the Accepting Authority had retired, the remarks of the Reviewing Officer was considered as final. The Recording Authority in fact had justified the grading of “Outstanding” given by him due to construction of 6th Mile Flyover on G.S. Road which however was downgraded without any comments from the Reviewing Authority and further moreover no communication was made to the petitioner. 15. The ACR for the period 01.04.2007-31.03.2008 also comprised of two parts i.e. (i) 01.04.2007 - 30.06.2007 and (ii) 01.07.2007-31.03.2008. For the 1st part, the petitioner was assessed as “Outstanding”. However, the Reviewing Authority graded him as only “Very Good” without giving any date. As the Accepting Authority had already retired, the remarks of the Reviewing Authority was considered as final. No communication of the down gradation was given to the petitioner. For the 1st part, the petitioner was assessed as “Outstanding”. However, the Reviewing Authority graded him as only “Very Good” without giving any date. As the Accepting Authority had already retired, the remarks of the Reviewing Authority was considered as final. No communication of the down gradation was given to the petitioner. For the 2nd part of the ACR, the petitioner was graded as “Outstanding” by the Recording Authority and the Reviewing Authority but the same was not placed before the selection held on 12.09.2013 for promotion to the post of Additional C.E. Instead the Commissioner and Special Secretary, PWD (Roads) concerned himself prepared a fresh ACR of his own for the period 01.07.2007-31.03.2008 by acting as the Recording, Reviewing and Accepting Authority while given the petitioner the grading of only “Good”. The same has come to light from the reply to the RTI submitted by the petitioner. The reason for the action according to the said authority was due to the retirement of the Recording Authority Mr. B.D. Sharma. 16. For the ACR for the period w.e.f. 01.04.2008-26.02.2009, the assessment by the Recording Authority and the Reviewing Authority was “Outstanding” with the date given by the latter as 31.12.2008. However, the Commissioner and Special Secretary, PWD (Roads) did not place the same before the selection held on 12.09.2013 for promotion to the post of Additional C.E. and instead replaced the same with a new one prepared by him with the grading of only “Good” by justifying that the Reviewing Authority Mr. B.D. Sharma had already retired. 17. For the ACR for the period w.e.f 01.04.2009-31.03.2010, the Commissioner and Special Secretary (Building & NH) was the Reporting Authority at the relevant time. He signed the ACR of the petitioner on 03.06.2013 just before the selection which was held on 12.09.2013 and reviewed the same by grading the petitioner as “Good” and which was accepted by the Accepting Authority, who was the Commissioner and Special Secretary, PWD (Roads). According to the petitioner, the same should not have been accepted since being from a different department at the relevant time, he had not seen the performance of the petitioner. 18. According to the petitioner, the same should not have been accepted since being from a different department at the relevant time, he had not seen the performance of the petitioner. 18. For the ACR for the period w.e.f 01.04.2010-31.03.2011, the petitioner was assess only for the period from 01.04.2010-06.02.2011 and the grading of “Good” was accepted despite the fact that the petitioner had performed outstanding work being assigned the work of a Nodal Officer to submit the DPR of Indo Bhutan Border Road under the Ministry of Home Affairs, supervision of road construction work of Barama Baska Road and Udalguri Rawta Road under Central fund. 19. For the ACR for the period w.e.f 01.04.2011 - 31.03.2012, the petitioner was also graded as “Good” although the project for construction of Barama Baska Road and Udalguri Rawta Road was at its peak. 20. For the ACR for the period w.e.f 01.04.2012 - 31.03.2013, the same comprised of two parts i.e., 01.04.2012-10.08.2012 and 10.08.2012-04.03.2013. In both the parts of the ACR, the Reviewing Authority observed that the petitioner could not be graded since a disciplinary proceeding was pending against him. However, the Accepting Authority without any application of mind accepted the ACR and graded him as “Good”. 21. Thus, for the 5 (five) vacancies in the post of Additional C.E. for the years 2010-11, 2011-12 and 2012-13, although the petitioner was considered for promotion but however, due to the faulty ACR, he was not considered for promotion, which has cost grave injustice to the petitioner. He therefore prays that the impugned fresh ACRs for the period w.e.f. (i) 01.07.2007-31.03.2008 and (ii) 01.04.2008-31.03.2009 which was placed before the Selection Committee be set aside and the ACRs for the said period be accepted as “Outstanding”. The petitioner also prays for review of his ACRs for the period 2009-10 to 2012-13 and to restore his grading as “Outstanding” and thereafter, place the same before the Selection Committee for considering his promotion to the post of Addl. C.E for the vacancies from 2010 onwards. And also to set aside the Minutes of the Selection Committee dated 03.01.2011 and 12.09.2013 for promotion to the post of Additional C.E. in so far as he is concerned. 22. Mr. C.E for the vacancies from 2010 onwards. And also to set aside the Minutes of the Selection Committee dated 03.01.2011 and 12.09.2013 for promotion to the post of Additional C.E. in so far as he is concerned. 22. Mr. J. Roy, the learned counsel for the petitioner submits that the petitioner was deprived of promotion for six years to the post of S.E. He was ultimately promoted only on 06.04.2013 w.e.f 12.02.2007 when other similar situated officers were promoted to the post of S.E. He submits that have the petitioner being promoted in time i.e w.e.f 12.02.2007, he would have been eligible for promotion to the post of Additional C.E on 21.01.2011 when other officers similarly situated were promoted. On his promotion to the post of S.E, the petitioner is placed below Shri. P.K. Choudhury and above Shri. Budheswar Bora at serial No. 5 in the inter-se seniority list of S.Es. As such, he would have been eligible to be considered for the vacancies for the period 2009 and 2010 itself. In the selection held for promotion to the post of Additional C.E on 03.01.2011 and 12.09.2013, the petitioner was not considered for promotion on the ground that a disciplinary proceeding was pending against him. 23. Mr. J. Roy, the learned counsel submits that in the selection process held on 12.09.2013, no proper procedure was followed in evaluating the ACRs of the ACs for promotion to the post of Additional C. E. For vacancies of 2010, the ACRs for the period 2004-05 to 2008-09 were to be considered but in respect of one Shri. Mainuddin Hassan, the ACR for the period 2003-04 was taken into consideration which according to the petitioner is impermissible and foreign to service jurisprudence. Mr. J. Roy, further submits that similar irregularities were committed to the detriment of the petitioner with regard to his promotion for the vacancies for the period 2011, 2012 and 2013. The petitioner was neither communicated his downgraded ACR nor notice served to him. The ACRs of the petitioner for the period 01.07.2007 to 31.03.2008 and 01.04.2008 to 31.03.2009 were not placed before the Selection Committee meeting held on 12.09.2013. According to the petitioner the ACRs were recorded by Mr. B.D. Sharma. The petitioner was neither communicated his downgraded ACR nor notice served to him. The ACRs of the petitioner for the period 01.07.2007 to 31.03.2008 and 01.04.2008 to 31.03.2009 were not placed before the Selection Committee meeting held on 12.09.2013. According to the petitioner the ACRs were recorded by Mr. B.D. Sharma. Instead the Commissioner and Special Secretary PWD (Roads) prepared fresh ACR and finalized with the same with the grading of “Good” on the ground that the Recording and Review Officer Mr. B.D. Sharma retired from service. He therefore submits that due to such gross illegality, the petitioner has been deprived of his promotion to the post of Additional C.E. w.e.f. 21.01.2011 when other similarly situated S.Es were promoted. 24. Mr. J. Roy in support of the uncommunicated ACRs of the petitioner refers to the decision of the Apex Court rendered in the case of Dev Dutt –Vs- Union of India and Ors. 2008 8 SCC 725 para 9, 10, 16, 17, 18 and 43. Under the facts and circumstances, he thus submits that the respondent authorities should be directed the impugned fresh ACRs for the period w.e.f. (i) 01.07.2007-31.03.2008 and (ii) 01.04.2008-31.03.2009 which was placed before the Selection Committee be set aside and the ACRs for the said period be accepted as “Outstanding”. The petitioner also prays for review of his ACRs for the period 2009-10 to 2012-13 and to restore his grading as “Outstanding” and thereafter, place the same before the Selection Committee for considering his promotion to the post of Addl. C.E for the vacancies from 2010 onwards. And also to set aside the Minutes of the Selection Committee dated 03.01.2011 and 12.09.2013 for promotion to the post of Additional C.E. in so far as he is concerned. 25. In response to the writ petition, the respondent No. 1 filed affidavit-in-opposition on 06.08.2013 which is mainly in response to the penalties imposed upon the petitioner. As may be noticed since the two penalties have been set aside by this Court in WP(C) No. 7178/2013 and WP(C) No. 4200/2014 vide Judgment and Order dated 16.02.2016 and 18.02.2016 respectively, consideration of the stand taken in the said affidavit-in-opposition may not be necessary. 26. As may be noticed since the two penalties have been set aside by this Court in WP(C) No. 7178/2013 and WP(C) No. 4200/2014 vide Judgment and Order dated 16.02.2016 and 18.02.2016 respectively, consideration of the stand taken in the said affidavit-in-opposition may not be necessary. 26. The petitioner by filing affidavit in reply against the affidavit-in-opposition of the respondent No. 1 reiterating his stand in the case while stating that the RTI application submitted by the petitioner on 01.10.2013 has not been considered by the department till date. 27. The petitioner subsequently filed an additional affidavit on 02.04.2014 upon grading as response on his RTI application. In the affidavit the petitioner has stated that the RTI application dated 01.10.2013 submitted by him was not responded to by the department and therefore he had to file a first appeal U/s 19 of the RTI Act, 2005 before the authority concerned. As a result, the documents sought by him were ultimately provided to him. 28. Mr. J. Roy submits that the documents reveal that had the petitioner been promoted in time, she would have been eligible for promotion to the post of Additional C.E. in the selection process held on 03.01.2011. By referring to the Minutes of the Selection Board Meeting held on 03.01.2011 (Annexure-18 of the additional affidavit), Mr. J. Roy submits that as many as 25 eligible candidates were considered against a total vacancy of 10 (ten) post of Additional C.E. which occurred in the year 2009 and 2010. Considering the petitioner’s seniority position in the inter se seniority list of SEs after his promotion w.e.f 12.02.2007, the petitioner should have been placed immediately after Shri. P.K. Choudhury who was placed at serial No. 5 amongst the 25 (twenty five) candidates considered in the said selection. Further, by referring to the Minutes of the Selection Board’s Meeting dated 12.09.2013 (Annexure-4 of the additional affidavit), Mr. J. Roy submits that selection for promotion to the post of Additional C.E was considered against a total 6 (six) vacancies which occurred in the year 2010, 2011, 2012 and 2013. Although the petitioner was amongst the candidates who was considered for promotion, he was not recommended despite his seniority since he was placed in ‘B Category’ and due to the pending departmental proceedings against him. 29. Mr. Although the petitioner was amongst the candidates who was considered for promotion, he was not recommended despite his seniority since he was placed in ‘B Category’ and due to the pending departmental proceedings against him. 29. Mr. J. Roy by referring to Annexure-8 of the additional affidavit submits that the ACR of the petitioner for the period 02.09.2005 to 15.02.2006 with the grading of outstanding was not placed before the Selection Board which held its meeting on 12.09.2013. Instead, the Commissioner & Special Secretary PWD (Roads) by his own prepared fresh ACRs of the petitioner and completed the same all by himself by grading the petitioner as only “Good”. The respondent No. 1 has also filed an affidavit-in-opposition against the additional affidavit filed by the petitioner denying the allegation of discrimination and malafides to be wholly misconceived. 30. Mr. Y. Doloi, the learned Additional Advocate General submits that the petitioner’s ACR cannot be reviewed at this stage since the officers concerned who had written the ACRs of the petitioner would have either being transferred elsewhere or retired by now. He however submits that as per instructions given to him, Mr. B.D. Sharma, the then Additional CE of PWD who was the Reporting Authority in the ACRs of the petitioner for the years 2007, 2008 and 2009 retired on 31.12.2015. Mr. Y. Doloi has also produced the ACRs of the petitioner in original which may be highlighted in the following table:- Sl. No. YEAR/PERIOD REMARKS 1. 01.04.2004-24.06.2004 Outstanding in view of Judgment dated 14.12.2007 in WP(C) No. 4939/2006 2. 28.07.2004-17.02.2005 -Do- 3. 01.04.2005-31.03.2006 Reporting & Accepting Authority retired. Hence no Remarks. 4. 01.04.2006-31.03.2007 Very Good 5. 01.04.2007-30.06.2007 Very Good 6. 01.07.2007-31.03.2008 Good (Reporting Officer retired) 7. 01.04.2008-31.03.2009 Good (Recording and Reviewing Officer retired) 8. 01.04.2009-31.03.2010 Good 9. 01.04.2010-02.06.2011 Good 10. 01.04.2011-31.03.2012 Good 11. 01.04.2012-10.08.2012 Good 12. 10.08.2012-04.03.2013 Good 13. 01.04.2013-31.03.2014 Outstanding 30. Upon considering the pleadings and the stand of the rival parties, what can be seen is that the petitioner has been promoted to the post of S.E. w.e.f. 12.02.2007 and with the penalties imposed upon him being set aside, he would be eligible to be considered for promotion to the post of Additional C.E notwithstanding the fact that he has retired from service on 31.03.2016. As can be seen the two selection process by which the petitioner was left out from being considered for promotion were held on 03.01.2011 and 12.09.2013. Therefore, it would be incumbent on the part of the respondents to consider the petitioner for promotion w.e.f the date his juniors were promoted pursuant to the selection held on 03.01.2011 and also 12.09.2013. For that matter, the fresh ACR grading given to the petitioner by the Commissioner and Special Secretary PWD (Roads) for the period w.e.f 01.07.2007-31.03.2008 and from 01.04.2008-31.03.2009 cannot be accepted for the simple reason that Shri. B.D. Sharma who is said to be the reporting authority concerned in the ACRs of the petitioner at the relevant time was in fact still very much in service and therefore, the grading of ‘Outstanding’ given by the Reporting Officer Shri. B.D. Sharma and accepted by Shri. Padmadhar Gogoi, Chief Engineer, PWD (Roads) for the said periods will have to be treated as ‘Outstanding’. Considering the fact that the penalties imposed upon the petitioner having been interfered by this Court and having regard to the fact that the ACRs of the petitioner for the period between 01.04.2009 to 04.03.2013 were influenced by the pending departmental proceeding and the ultimate penalties given to him, I am of the considered opinion that the same should be treated as ‘Very Good’ instead of directing fresh consideration by the authorities concerned at this belated stage and since the petitioner has also retired from service in the meantime. 31. On the basis of the above finding, the respondents are directed to convene a review DPC to consider the case of the petitioner for promotion to the post of Additional C.E. with retrospective from 21.01.2011 by taking into account the gradings that has been directed to be given to the petitioner herein above. Upon convening a review DPC, if the petitioner is recommended, he shall be accordingly promoted with retrospective effect. Upon such promotion, the petitioner shall be entitled to all the service benefits. The exercise for conducting the review DPC shall be convened by the respondent No. 1 within a period of 1 (one) month from the date of receipt of a certified copy of this order and the entire exercise shall be completed within a period of 3 (three) months thereafter. 32. The writ petitions are accordingly allowed. No cost.