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2020 DIGILAW 1056 (JHR)

Santosh Kumar v. Union of India

2020-11-09

RAVI RANJAN, SUJIT NARAYAN PRASAD

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JUDGMENT : The matter has been heard through video conferencing with the consent of the learned counsel for the parties. They have raised no complaint regarding audio and visual quality. 2. This intra-court appeal is directed against the order/judgment dated 11.04.2018 passed by learned Single Judge of this Court in W.P. (S) No. 4196 of 2011, whereby and whereunder, the writ petition has been dismissed by not interfering with the order dated 17.03.2011 passed by the D.I.G. (Admn.), Special Sector, C.R.P.F, whereby the claim of the writ petitioner for promotion to the post of Inspector has been rejected. 3. The brief facts of the case, which are required to be referred herein for proper adjudication of the lis, are as under: The writ petitioner-appellant was initially appointed as Sub Inspector (G.D) in Central Reserve Police Force (CRPF) on 26.09.2004. In the year 2008, a Promotion Board was constituted for promotion to the post of Inspector but the case of the writ petitioner-appellant for promotion was not properly considered in the year 2008 and 2009 in spite of the fact that the writ petitioner-appellant had a good service record. However, the writ petitioner was promoted in the year 2010 in the rank of Inspector. The grievance of the writ petitioner-appellant is that juniors to him were promoted in the year 2008, therefore, being aggrieved with the action of the respondents-authorities, he submitted representation before respondent no. 2 for consideration of his case for promotion but his claim was rejected vide order dated 17.03.2011 on the ground that the writ petitioner-appellant failed to secure required marks for getting promotion. Being aggrieved with the order passed by the respondents-authorities, the writ petitioner-appellant approached to this Court by invoking extraordinary jurisdiction conferred under Article 226 of the Constitution of India by agitating the ground that the respondents are not justified in not giving remarks like “Very Good” when the performance of the writ petitioner-appellant was found to be up-to mark. Further, the entry made in his service record ought to have been communicated to him so that he could have known about the assessment of his work and conduct, which would have enabled him to improve his work in future and he would have an opportunity of making representation against the entry. Further, the entry made in his service record ought to have been communicated to him so that he could have known about the assessment of his work and conduct, which would have enabled him to improve his work in future and he would have an opportunity of making representation against the entry. In support of his argument, learned counsel for the writ petitioner-appellant had placed reliance upon the judgment rendered in the case of Dev Dutt vs. Union of India & Ors reported in AIR 2008 SC 2513 . The respondents-Union of India had put their appearance through their counsel, who agitated the ground, inter alia, before the writ Court that, since the writ petitioner-appellant had not cleared the prescribed bench-marks i.e. one ‘Very Good’ and two Good ‘A.C.R.s’ for securing 21 marks during the year 2005-06 to 2007-08, therefore, his case for promotion was not considered in 2008 and 2009, but, the writ petitioner-appellant had been brought on ‘Approved List’ after he scored prescribed 21 marks during screening of the records and thereafter he was promoted in the rank of Inspector (GD) vide letter dated 25.06.2010. It was further submitted that since ‘Good’ is not an adverse remark, therefore, the writ petitioner-appellant was not informed or communicated with the marks in the ACRs. The writ Court after delving into the issues and considering the submissions of the parties declined to interfere with the impugned decision of the respondents-authorities mainly on the ground that the writ petitioner-appellant could not found fit to be promoted because he failed to secure the required marks in the year 2005-06 and 2007-08, therefore on comparative assessment of his candidature along with others he has not been found fit to be promoted in the year 2008 and 2009. The aforesaid order is the subject matter of the present intra-court appeal. 4. It is evident from the facts enumerated herein above that the writ petitioner-appellant has claimed to be promoted from the year 2008 when his juniors were promoted, however, he was promoted in the year 2010. 5. Before entering into the rival submissions advanced by learned counsel for the parties as also finding recorded by learned Single Judge, this Court deem it fit and proper to go through the relevant rules for promotion, which has been brought on record as Annexure R/1 to the supplementary counter affidavit dated 09.11.2017 filed before the writ Court. 5. Before entering into the rival submissions advanced by learned counsel for the parties as also finding recorded by learned Single Judge, this Court deem it fit and proper to go through the relevant rules for promotion, which has been brought on record as Annexure R/1 to the supplementary counter affidavit dated 09.11.2017 filed before the writ Court. The Standing Order No. 6/99 dated 23.04.1999 under the caption “PROCEDURE FOR PROMOTION OF NGO (GD) EXECUTIVE PERSONNEL (MALE/FEMALE) TO VARIOUS RANKS FROM CONSTABLE TO INSPECTOR”, Clause (A) III deals with the eligibility conditions for promotion from the post of Sub-Inspector to Inspector, which is as under: “III.SUB INSPECTOR TO INSPECTOR (A) Must have minimum three years service in the rank. (b) Must have qualified in Platoon Commander Course as well as Senior Sub Inspector Cadre Course (SSICC) (c) Must not have adverse report in the ACR in preceding five years. (d) Must not have had major punishment in preceding five years.” Further Clause I (1) deals with marks for assessments, which reads hereunder as : TOTAL MARKS FOR ASSESSMENT – 80 MARKS (Max Marks – 60 marks) “I. 1) MARKS FOR ACR’s (i) Outstanding 12 marks (ii) Very Good 9 marks (iii) Good/Satisfactory 6 marks (iv) Above Average/Average/Fair 3 marks (v) Poor/Unsatisfactory/Below Average 0 marks It is evident from the material available on record as also from the impugned order that the writ petitioner-appellant has not been found to be qualified for the year 2008 and 2009 since he had not obtained minimum 21 marks for promotion. 6. Now coming to the merit of the case, contention has been raised by learned counsel for the writ petitioner-appellant before the writ Court that the performance assessed by the respondents-authorities as “Good” has been taken as rider in consideration of his case for promotion and once it has been taken as a rider the same ought to have been communicated to the writ petitioner. The question of communicating the adverse entries/remark was the issue before Hon’ble Apex Court in the case of Dev Dutt Vs. Union of India & Ors reported in (2008) 8 SCC 725 . The relevant portion of paragraph 8, 9 and 10 are quoted hereunder as: “8. ……… We do not agree. The question of communicating the adverse entries/remark was the issue before Hon’ble Apex Court in the case of Dev Dutt Vs. Union of India & Ors reported in (2008) 8 SCC 725 . The relevant portion of paragraph 8, 9 and 10 are quoted hereunder as: “8. ……… We do not agree. In our opinion every entry must be communicated to the employee concerned, so that he may have an opportunity of making a representation against it if he is aggrieved. 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 1993-1994 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.” It is evident from the aforesaid observation made by Hon’ble Apex Court that even if the ACR of the public servant contains the performance as “Good” and the same is being treated as rider while granting promotion, it has to be communicated to the delinquent-employee. 7. 7. But the fact remains herein that the aforesaid issue was never raised before the writ Court nor the writ petitioner-appellant had made any representation before the authorities concerned against the said entry even after rejection of the claim of the writ petitioner-appellant vide order dated 17.03.2011 in opposition of the issue of adverse entry. It is not in dispute that the adverse entry is to be communicated. Even if the entry made in the ACR is not adverse but it comes in the way of granting promotion it has to be communicated. But, equally it is to be seen that when the authorities had taken a decision rejecting the claim of the writ petitioner vide order dated 17.03.2011, it was incumbent upon the writ petitioner to make a representation immediately thereafter but no such representation was filed. 8. This Court has put repeated query upon learned counsel for the writ petitioner-appellant whether any representation has been filed before the respondents-authorities in opposition to the entry made in the ACR for the relevant years, the learned counsel for the writ petitioner-appellant with all fairness has submitted that no such representation was submitted before the authorities concerned as such no submission in this regard was made before the writ Court. On this pretext, at this juncture, this Court cannot hold the decision of the respondents-authorities dated 17.03.2011 illegal due to the fact that no such plea was ever raised before the authorities concerned. This Court, therefore, is of the view that since, as per the rule settled to the effect that the adverse entry is to be communicated but even though it has been communicated to the writ petitioner-appellant vide order dated 17.03.2011 by rejecting his claim for promotion no such representation was filed, it cannot be said that the writ petitioner-appellant was not provided with an opportunity to move against the aforesaid adverse entry. 9. At this juncture, learned counsel for the writ petitioner-appellant has made a prayer that the writ petitioner-appellant at least may be given liberty to make representation before the respondents-authorities against the adverse entry made for the year 2005-06 to 2007-08. Upon such submission, Mr. Lakshman Kumar, learned C.G.C. appearing for the respondents has made no opposition rather he has fairly submitted that the writ petitioner-appellant may be given liberty to make representation before the competent authority for its consideration in accordance with law. 10. Upon such submission, Mr. Lakshman Kumar, learned C.G.C. appearing for the respondents has made no opposition rather he has fairly submitted that the writ petitioner-appellant may be given liberty to make representation before the competent authority for its consideration in accordance with law. 10. This Court, taking into consideration the aforesaid submission and considering the facts, as discussed herein above, is of the view that if such opportunity would be granted to the writ petitioner-appellant no prejudice would be caused to the authorities concerned and hence, this Court deem it fit and proper to grant such opportunity to the writ petitioner-appellant. 11. However, this Court, before granting such opportunity, is of the view that the order passed by the learned Single Judge cannot be said to suffer from infirmity as the Departmental Promotion Committee has considered the cases of one or the other candidate on the basis of applicable rule, in which, the writ petition-appellant was found to be not qualified on not securing minimum 21 marks and the post of Inspector being a Selection Post has to be filled up strictly on merit and from the fact it is evident that for selection year 2008 and 2009 the writ petitioner-appellant was found to be less meritorious than the other successful employees. In view of the aforesaid fact the decision of the Promotion Committee cannot be said to suffer from infirmity. 12. It is settled position of law the power of judicial review can only be exercised showing interference in the decision of Departmental Promotion Committee if there is error in decision making process and not in the decision taken. Herein, according to us, there is no error in decision taking process as on merit the writ petitioner-appellant was found to be less meritorious hence not promoted. Accordingly, the impugned order requires no interference by this Court. However, it is open for the writ petitioner-appellant to make a representation before the competent authority against the adverse entry made for the year 2005-06 to 2007-08 within a period of four weeks from the date of receipt of copy of this order. If such representation is filed before the competent authority, they shall decide the same in accordance with law within a period of two months from the date of receipt of such representation. 13. With the aforesaid observations and directions, the instant intra-court appeal stand disposed of.