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2017 DIGILAW 272 (TRI)

Srabani Das v. State of Tripura

2017-06-29

S.TALAPATRA

body2017
JUDGMENT : Heard Ms. A. Chakraborty, learned counsel appearing for the petitioner as well as Mr. S. Chakraborty, learned Additional Government Advocate appearing for the respondents. 2. By means of this petition, the petitioner has urged this court to direct the respondents no. 1, 2 and 3 to expunge all the adverse remarks as recorded in her Annual Confidential Report for the years 2009-10 and 2010-11. Further, the petitioner has pressed that the recommendation of the Departmental Promotional Committee (for short DPC) held on 14.09.2012 for appointment to the post of Office Superintendent on promotion by declaring the petitioner unfit for the promotion be declared unsustainable and set aside. The petitioner has further asked this court to quash the order of appointment of the respondent no.4 in the post of Office Superintendent vide Order under No. F.1-129/(Loose)/TW/ESTT/06-09/26671-78 dated 01.10.2012. The petitioner has also sought for direction upon the respondents no. 1, 2 and 3 to appoint her from 20.10.2012 with all financial benefits in the post of Office Superintendent. 3. This court at the outset has verified the ACRs of 2009-10 and 2010-11. It appears therefrom that in the ACRs of 2009-10 the petitioner had been assessed ‘Fair’ against the columns no. 6 to 13 by the Reporting Officer but against the columns no. 20 and 21, it has been recorded that the petitioner was not fit to continue in the post of Head Clerk for lack of fitness and thus it had been remarked that she was not fit for promotion. Similarly in the ACRs of 2010-11, the further adverse remarks had been made and virtually she had been treated as a non-performing Officer with eratic behaviour pattern. Against the column no. 21, again she was declared as ‘Not Fit’ for getting promotion to the higher post. 4. With the reply, the respondents have filed the ACRs of the previous years which according to them were considered by the DPC. It appears that the petitioner received the grade of ‘Good’. However in the previous ACRs, she was found fit for promotion. It is also an admitted position that the ACRs of the year 2009-10 and 2010-11 were not communicated to the petitioner before the DPC which was held on 14.09.2012. It appears that the petitioner received the grade of ‘Good’. However in the previous ACRs, she was found fit for promotion. It is also an admitted position that the ACRs of the year 2009-10 and 2010-11 were not communicated to the petitioner before the DPC which was held on 14.09.2012. There is no dispute that the petitioner was senior to the respondent no.4 as the petitioner joined in the service on 08.05.2002 where as the respondent no.4 had joined in the service on 10.01.2006. 5. On scrutiny of the ACRs of all the Officers borne in the feeder post i.e. the Head clerk, the petitioner was found unfit by the DPC for promotion. As consequence of that observation, the respondent no.4 was recommended for promotion to the post of Office Superintendent and on accepting the said recommendation, the respondent no. 4 was appointed as the Office Superintendent by the Order dated 04.10.2012 (Annexure 7 to the writ petition). 6. The petitioner had challenged the said appointment earlier by filing a writ petition being WP(C) 550 of 2012. In the said writ petition, the petitioner has urged the similar grounds viz. the adverse remarks which were not communicated to her was considered by the DPC and the DPC beating the said untenable process had declared her as ‘unfit’ for the promotion. By the order dated 01.04.2013, the said writ petition being WP(C) 550 of 2012 was disposed of with the following direction:- “Considering the entire facts and circumstances, it appears that the petitioner admittedly did not challenge the promotion of the respondent No.10 at the relevant point of time and after almost four years now challenges the said promotion. According to this Court, it would not be proper to interfere with the aforesaid promotion of respondent No. 10 at this belated stage as that would unsettled the settled position. According to this Court, it would not be proper to interfere with the aforesaid promotion of respondent No. 10 at this belated stage as that would unsettled the settled position. However, as the petitioner has made a representation on 11.10.2012 to the Director cum Secretary, Tribal Welfare, Government of Tripura and admittedly, the adverse remarks in the ACRs which was considered by the DPC and on the basis of which, the petitioner was found unfit for promotion, was not communicated to her, this Court is of considered opinion that by this time it is settled that the adverse remarks entered into the ACRs have to be communicated to the employee concerned and without communicating the same, the employer cannot act on the basis of the said ACRs which would adversely affect the interest of the employee and as admittedly the same was not communicated to the petitioner, it would be proper to ask the respondent No. 2 and 3 to consider the representation of the petitioner dated 11.10.12 ( Annexure-15 to the writ petition) and dispose of the same. It is ordered accordingly. At the time of disposing of the representation of the petitioner, the authority should reconsider the ACRs of the petitioner and if ultimately gradation of the ACRs is altered, then the same should be placed before the DPC for reconsideration of her case afresh. The entire exercise shall be completed within a period of two months from today. With the aforesaid order, the writ petition is disposed of”. 7. There is no dispute that the representation of the petitioner dated 09.05.2013 (Annexure 10 to the writ petition) as submitted in pursuance of the said judgment was considered by the competent authority and further, by the memorandum dated 14.05.2013 (Annexure 11 to the writ petition), the grounds of objection was turned down by the Secretary to the Government of Tripura, Tribal Welfare Department. For not accepting the representation and the grounds assigned therein, the respondents have observed as under:- “WHEREAS the undersigned has carefully examined the comments dated 7/5/2013 submitted by Smt. Srabani Das on adverse remarks for the year 2009-10 and 2010-11 and considered. It is found that she had availed several nature of leave(Earned Leave/Commuted Leave etc.) off and on about 124 days during that period for her treatment as she was suffering from carcinoma (as per Dr. It is found that she had availed several nature of leave(Earned Leave/Commuted Leave etc.) off and on about 124 days during that period for her treatment as she was suffering from carcinoma (as per Dr. prescription) and on the other hand, her ACRs for the period 2009-10 and 2010-11 was having adverse remarks. Moreover, her performance as a head Clerk during that period was found to be not satisfactory at all. The post of Office Superintendent is a key post in any Govt. Deptts/Organizations including Tribal welfare Department and as such, the role of Office Superintendent is very crucial and highly responsible in the Tribal Welfare Deptt. where there are several number of Govt. employees at the Directorate level, District level, Sub Divisional and Block level. Therefore, the office Superintendent should be efficient, mentally and physically sound and hence, it is considered that she will not be in a position to shoulder the duties and responsibilities of Office Superintendent. The views of there Addl. Secretary (the then Jt. Secy./Addl Dir. TW) Transport, Government of Tripura which was communicated to the Director, Tribal Welfare vide his letter No. F.1(3)-JS/Trans/2013 dated 20.04.2003 proposing to hold review for the DPC for consideration of promotion to the post of Office Superintendent in favour of Smt. Srabani Das has also been examined, but it is not considered as it is found to be self contradictory and it was not in conformity with his earlier stand in so far as writing of ACRs having adverse remarks for the year 2009-10 and 2010-11 of Smt. Srabani Das is concerned. The Addl Secy. Government of Tripura, Transport Deptt. in his letter dated 20.04.2013 did not spell out clearly about the grading of ACRs of the said Smt. Das for the period 2009-10 and 2010-11. AND WHEREAS the undersigned has carefully reviewed/re-examined all relevant records, ACRs for the year 2009-10 and 2010-11 as well as the representation dated 11.10.2012 and comments of Smt. Das dated 07/05/2013, it is considered that there is no scope to alter the gradation of her ACRs having adverse remarks for the year 2009-10 and 2010-11 on the basis of which her representation dated 11/10/2012 for promotion to the post of Office Superintendent could be placed before the DPC for re-consideration of her case afresh. NOW, THEREFORE, the undersigned after careful consideration of all relevant records, ACRs, representation dated 11/10/2012 as well as comments dated 07/05/2013 of Smt. Srabani Das holds that there is no scope to alter her ACRs for the year 2009-10 and 2010-11 but to uphold the same. As such, her representation dated 11/10/2012 for promotion to the post of Office Superintendent is not considered. With these observations, the representation dated 11/10/2012 of the said Smt. Srabani Das, Head Clerk (T.W) is disposed of.” Fundamentally being aggrieved by the said memorandum dated 14.05.2013, the petitioner has filed this writ petition. 8. Ms. Chakraborty, learned counsel has submitted that the adverse remarks are not based on any objective assessment and those are very inconsistent with the grades given in the ACRs of the earlier years. Ms. Chakraborty, learned counsel has also drawn attention of this court to a communication dated 20.04.2013 (Annexure 9 to the writ petition) which has been written by the Additional Secretary, Government of Tripura who was the reporting Officer in ACRs of both the years. In the said communication, the said Officer in respect of the representation filed by the petitioner has expressed as under:- “2. In the context, I am constrained to inform you that as per provisions of a Reporting Officer, who has written the ACR is not authorized by law to review his observation and grading. Rather the Accepting Authority i.e. Director, Tribal Welfare is responsible for communication of adverse reports to the staff/employee against whom some adverse entries/comments are recorded by the Reporting Officer. Instead of following rules Sri L.H. Darlong, Director, Tribal Welfare accepted the ACR without communication of the adverse entries to the staff against whom Reporting officer had recorded some adverse comments. 3. In addition to that Sr L.H. Darlong, Director, Tribal Welfare has agreed with the observation of the Reporting Officer and further proceeded to hold DPC and quite willfully made Smt. Srabani Das, Head Clerk unfit for promotion to the post of Office Superintendent and deprived her of her legal rights. 4. 3. In addition to that Sr L.H. Darlong, Director, Tribal Welfare has agreed with the observation of the Reporting Officer and further proceeded to hold DPC and quite willfully made Smt. Srabani Das, Head Clerk unfit for promotion to the post of Office Superintendent and deprived her of her legal rights. 4. Further as per provision, if adverse entries are not communicated to the employee concerned on time (within one month) by the Reviewing/Accepting Authority it is presumed by law that the adverse entries with regard to the employee concerned will have no affect in respect of promotion Hence, the DPC by which promotion was given to the employee to the post of Office Superintendent by depriving Smt. Das is void. Hence, the case has merit to be reconsidered. A review DPC should be held immediately to considered promotion of Smt. Srabani Das, Head Clerk to the post of Office Superintendent (TW) with retrospective effect and all financial benefits should be granted to Smt. Das with retrospective effect. 5. Hence, as observed by Hon’ble High Court afresh DPC is to be constituted and Smt. Das, head Clerk is to be given promotion to the post of Office Superintendent (TW). A Director should be conversant with the all acts and rules otherwise there will be miserable draw backs/deadlock in Tribal Welfare Department in specific and implementation of welfare schemes for upliftment of Tribals of Tripura in particular as well.” 9. It is really startling that the Reporting Officer, who at that subsequent point of time was holding the post of Additional Secretary to the Government of Tripura, Transport Department, has pushed the buck to the Director, Tribal Welfare who, at the relevant point of time, was the Review Officer. He has remarked that the said Director, Tribal Welfare has agreed with the observation of the Reporting Officer and further proceeded to hold the DPC and quite willfully made the petitioner unfit for promotion to the post of Office Superintendent and deprived her of her legal rights. This Officer should have been proceeded against because on the basis of his report the Director, Tribal Welfare as the Reviewing Officer had merely agreed without any additional comment. As the Reporting Officer, the said Officer has remarked that the petitioner was quite unfit for promotion to the next superior post. This Officer should have been proceeded against because on the basis of his report the Director, Tribal Welfare as the Reviewing Officer had merely agreed without any additional comment. As the Reporting Officer, the said Officer has remarked that the petitioner was quite unfit for promotion to the next superior post. Now, he has altered his position and has further stated that the DPC recommendation by which promotion was given to the employee to the post of Superintendent by depriving the petitioner is void. Hence, the case has the merit to be considered. The Review DPC should be held immediately to consider promotion of the petitioner to the post of Office Superintendent with retrospective effect and all financial benefits should be granted to the petitioner. But nowhere in the entire communication dated 20.04.2013, he has accepted the allegations lodged by the petitioner against his comments made as the Reporting Officer. As it has already been noted that this court has scrutinized ACRs of both the years. The Reporting Officer had made the adverse remarks. The Reviewing Officer had merely agreed to that comment without any additional remark. Therefore, this communication dated 20.04.2013 lacks integrity and cannot be relied for any purpose. 10. Had the Reporting Officer accepted that his remarks were unjustified, then of course the Reviewing Officer ought to have recalled the remarks and recorded the proper remarks in the columns where the adverse remarks were recorded against the petitioner, but the Reporting Officer when asked for comments, has made certain observations which were never asked for. He had travelled beyond his brief. 11. This court has scrutinized the comments and do not find any infirmity in the process. As this court cannot sit as the court of appeal under Article 226 of the Constitution of India and finds that the due process after the direction given by this court was completely observed, no relief can be granted to the petitioner. As such this writ petition stands dismissed. 12. Ms. A. Chakraborty, learned counsel has further reported this court that the petitioner has by this time retired from his service. There remains nothing to be considered for future. There shall be no order as to costs.