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2021 DIGILAW 59 (MAN)

Khumanthem Dilip Singh v. State of Manipur

2021-10-27

M.V.MURALIDARAN

body2021
JUDGMENT [1] This writ petition has been filed by the petitioner seeking a writ of Certiorari mandamus to set aside the order dated 05.8.2020 passed by the first respondent and to direct the respondents to consider the representation of the petitioner dated 21.2.2019 in accordance with law afresh and to hold a fresh review DPC for promotion to the post of Joint Director (G&M) in the Department of Textile, Commerce & Industry, Government of Manipur. [2] Heard the learned counsel for the petitioner; the learned Government Advocate for the first respondent and the learned counsel for the second respondent - Manipur Public Service Commission. [3] Assailing the impugned order, the learned counsel for the petitioner submitted that earlier the petitioner questioned the legality and correctness of the proceedings of the Departmental Promotion Committee (DPC) meeting held on 28.12.2013 and also sought quashing of the order dated 01.2.2014 issued by the Deputy Secretary to the State Government and by the order dated 14.2.2017, the said writ petition was allowed by the learned Single Judge and consequently, the proceedings of the DPC meeting held on 28.12.2013 and the order dated 01.2.2014 appointing the private respondent mentioned therein on promotion to the post of Joint Director of Industries (G & M) are quashed. He would submit that aggrieved by the order of the learned Single Judge, the State preferred W.A.No.23 of 2017 and the private respondent Ibotombi Sharma preferred W.A.No.24 of 2017 and by the common judgment dated 18.12.2018, the Division Bench of this Court allowed both the appeals and directed the State Government to communicate the ACR entry of the writ petitioner within a period of one month from the date of receipt of a copy of the order and thereafter, the writ petitioner is at liberty to make a representation, if he so chooses, against such entry within one month after the receipt of the ACR copy. In the said judgment it was also directed the State Government to decide the representation of the petitioner within two months from the date of receipt of the representation. The Hon’ble Division Bench further observed that if the representation is accepted and entry is upgraded, the writ petitioner’s claim will be considered in a review DPC. In the said judgment it was also directed the State Government to decide the representation of the petitioner within two months from the date of receipt of the representation. The Hon’ble Division Bench further observed that if the representation is accepted and entry is upgraded, the writ petitioner’s claim will be considered in a review DPC. [4] The learned counsel for the petitioner further submitted that pursuant to the judgment of the Division Bench, the petitioner submitted a representation after receiving the ACR copy on 21.2.2019 requesting the authority to correct the wrong entry made in the ACR for the years 2006-07, 2007-08 and 2008-09 respectively and upgrade the ACRs for the aforesaid period to the outstanding level and to hold a review DPC to consider his case for promotion to the post of Joint Director (G & M) in the Commerce and Industries Department. [5] The learned counsel then submitted that despite the direction of the Division Bench of this Court, the first respondent State has failed to consider the case of the petitioner in proper perspective and issued the impugned order dated 5.8.2020, thereby rejecting the claim of the petitioner. According to the learned counsel for the petitioner, the representation of the petitioner was rejected without giving any justifiable reasons and without taking into consideration the resolution of the Meeting held on 12.6.2019 and 14.10.2019 respectively. [6] The learned counsel next submitted that as per the DoPT guidelines the grading for promotion to Class I post bench mark is “very good” and not as “good”. Therefore, the ACRs grading to the petitioner for the period 2007-08 and 2008-09 is an adverse remarks and that the order impugned is illegal and arbitrary. Moreover, a bare perusal of the impugned order, it is clear that no contact of the then reporting, reviewing and accepting officers and instead of making any attempt to contact the aforesaid officials, the first respondent has passed the impugned order saying that it may not be possible to contact the officials. According to the learned counsel, such decision of the first respondent is highly illegal and therefore, the same is liable to be set aside. [7] Countering the arguments of the learned counsel for the petitioner, Mr. According to the learned counsel, such decision of the first respondent is highly illegal and therefore, the same is liable to be set aside. [7] Countering the arguments of the learned counsel for the petitioner, Mr. S. Nepolean, the learned Government Advocate appearing for the first respondent State submitted that only after examination of the merits, behavior and performance of duties held by the incumbents by the concerned authorities of the Department, writings were made in the ACRs and in the case of the petitioner, the competent authority, after consideration of the representation made by him and after examination of the ACRs for the concerned period, issued the impugned order by rejecting the claim of the petitioner. [8] The learned Government Advocate further submitted that the petitioner cannot dictate the authority to consider and dispose of the representation in his favour and that the allegations made in the writ petition are not sustainable in the eye of law. [9] Mr. R.S. Reisang, the learned senior counsel for the Manipur Public Service Commission submitted that the Manipur Public Service Commission received proposal from the Deputy Secretary in Form-6 for filling up of one vacant post of Joint Director of Industry (G & M) in Commerce and Industry Department, Manipur by promotion on regular basis and that in the seniority list two eligible officers namely the petitioner and the third respondent was submitted by the Department. Thereafter, DPC was held on 28.12.2013 at Manipur Public Service Commission in connection with the said appointment and after careful consideration of the integrity certificate and assessment of overall ACRs gradings of the last five years of the two officers in the zone of consideration, recommended the third respondent for appointment by promotion to the post of Joint Director. He would submit that the authority after examination of the ACRs for the concerned period, issued the impugned order rejecting the claim of the petitioner. [10] The learned senior counsel for the Public Service Commission then submitted that the post of Additional Director (G & M) has already been filled up vide order dated 27.2.2021, subject to the final outcome in the instant writ petition. [11] This Court considered the submission made by learned counsel for the petitioner and the learned Government Advocate appearing for the first respondent and the counsel for Manipur Public Service Commission and also perused the materials available on record. [11] This Court considered the submission made by learned counsel for the petitioner and the learned Government Advocate appearing for the first respondent and the counsel for Manipur Public Service Commission and also perused the materials available on record. [12] The grievance of the petitioner is that since he was not previously communicated about the entries made in the ACRs, the same ought not to have been made the basis for consideration of promotion and the proceedings of the DPC being arbitrary and illegal. It is also the say of the petitioner that when the petitioner filed W.P.(C) No.328 of 2014 for quashing the proceedings of the DPC meeting held on 25.12.2013 for promotion to the post of Joint Director (G & M), including the promotion order of the private respondent to the post of Joint Director (G & M), the said writ petition was allowed by this Court on 14.12.2017 whereby the proceedings of the DPC and the promotion order of the private respondent were quashed. Assailing the said quashing order of the learned Single Judge, both the State and the private respondent preferred appeals and by the judgment dated 18.12.2018, the writ appeals were allowed by the Hon’ble Division Bench thereby setting aside the order of the learned Single Judge with liberty to the petitioner to submit a representation to the Government to upgrade his ACR. In the said judgment, the Government was directed to communicate the ACRs which were used by the DPC and to consider the representation of the petitioner in a time bound manner. In the said judgment, it has also been observed that if the representation is accepted and ACR of the petitioner is upgraded, a review DPC shall be held within three months after the claim of the petitioner is considered. Pursuant to the directions, the petitioner submitted a representation and by the impugned order, the representation of the petitioner was rejected by the first respondent on 5.8.2020. Pursuant to the directions, the petitioner submitted a representation and by the impugned order, the representation of the petitioner was rejected by the first respondent on 5.8.2020. [13] The contention of the petitioner is that the representation of the petitioner was rejected without giving any justifiable reasons and the first respondent without taking into consideration the resolution of the meeting dated 12.6.2019 and 14.10.2019 respectively, issued the rejection order on the ground that the period of ACRs which are to be decided for upgradation are for the years 2006-07, 2007-08 and 2008-09 whose grading are “very good”, “good” respectively and ACR grading “good” and “very good” are not adverse remarks. [14] It is the further contention of the petitioner that the representation cannot be disposed of without applying the mind and without assessing the self appraisal report submitted to the reporting officer. According to the learned counsel, as per the DoPT guidelines the grading for promotion to Class I post bench mark is “very good” and not as “good”. Therefore, the impugned order dated 5.8.2020 is illegal and arbitrary. [15] The petitioner was initially appointed to the post of Geologist on regular basis on the recommendation of the Manipur Public Service Commission on 24.5.1986 and on 23.11.2012, the Principal Secretary (Com. & Ind.) issued a notification publishing the final seniority list of Geologist, wherein the name of the petitioner appeared at Serial No.1 and that the third respondent name appeared at Serial No.2. On 15.9.1979, the Under Secretary of the Department issued a notification notifying the Recruitment Rules for the post of Joint Director of Industries (Geology) and on 27.12.2013, the Deputy Secretary issued a notification stating that a meeting of a DPC would be held on 28.12.2013 to consider the eligible persons for appointment on promotion to the post of Joint Director (G & M) in the Department of Commerce and Industries. [16] Suspecting some foul play in the proceedings of the DPC, the petitioner submitted RTI application seeking information. [16] Suspecting some foul play in the proceedings of the DPC, the petitioner submitted RTI application seeking information. On the recommendation of the DPC, by the order dated 1.2.2014, the private respondent was appointed on promotion to the post of Joint Director of Industries and after the appointment made, the Additional Secretary, MPSC furnished a copy of the proceedings of the DPC meeting held on 14.2.2014 and in respect of the ACRs, the Deputy Secretary informed the Director on 13.3.2014 that copies of the ACRs need not be furnished to the petitioner. As the concerned authorities failed to furnish the information as regards the grading of the ACRs from the official respondents and being aggrieved by the inaction on the part of the respondent authorities, the petitioner filed W.P.(C) No.328 of 2014. By the order dated 14.2.2017, the learned Single Judge allowed the writ petition. It would be appropriate to extract paragraphs 7 and 8 of the order of the learned Single Judge, which read thus: “7. In Dev Dutt case, the grievance of the appellant was that he was not communicated the “good” entry for the year 1993- 1994 and had he been informed about it, he would have got the opportunity of making a representation. Having not done so, the rules of natural justice have been violated. The Hon’ble Supreme Court examined all aspects as regards the entry in the ACR namely the concept of adverse entry; the requirement of communication of entry and the effect of non-communication of entry. With respect to concept of adverse entry, what is relevant is not the nomenclature like fair, good, very good etc., but it is the effect which the entry is having, determines whether it is an adverse entry or not. It is the rigour of the entry which is important and 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. The reason as to why the entry in the ACR is to be communicated, is to give an opportunity to the employee of making a representation if he is aggrieved by it. Non-communication of entry is violation of the principle of fairness which is the soul of natural justice and arbitrariness violates Article 14 of the Constitution. The reason as to why the entry in the ACR is to be communicated, is to give an opportunity to the employee of making a representation if he is aggrieved by it. Non-communication of entry is violation of the principle of fairness which is the soul of natural justice and arbitrariness violates Article 14 of the Constitution. The Hon’ble Supreme Court went ahead further by observing that even the O.M, if interpreted to mean that only adverse entries are to be communicated to the employee concerned and no other entries, would become arbitrary and hence, illegal. All similar rules/ Government orders/office memoranda, in respect of all services under the State, whether civil, judicial, police or other service (except the military) will hence be illegal and are to be ignored. In the instant case also, the grievance of the petitioners is that since the entry in his ACRs is not communicated to him, the proceedings of the DPC based on the said un-communicated ACRs are arbitrary, to which the stand of the respondents is that the entry in the ACRs not being adverse to the petitioner, the same is not required to be communicated to him. Therefore, the contention of the respondents that the law laid down in Dev Dutt case will not apply to the facts of the case, has no substance and is accordingly not acceptable to this court. Admittedly, the petitioner is senior to the private respondent but because of the fact that the petitioner was given an overall grading of “very good”, he was held ineligible and the private respondent was given promotion. Out of five years, the petitioner was given a grading of “outstanding” in respect of the last two years and in respect of the 2nd and 3rd years, the grading given was only “good” and had the entry in respect of 2nd year been communicated to the petitioner, he would have got the opportunity to make a representation or would have improved himself in the 3rd year. Since the petitioner was not communicated the entries in respect of the first three years, he did not get the opportunity to make a representation and therefore, the inaction on the part of the authorities was arbitrary being violative of Article 14 of the Constitution and the un-communicated entries would not have been made the foundation for consideration of promotion. Since the petitioner was not communicated the entries in respect of the first three years, he did not get the opportunity to make a representation and therefore, the inaction on the part of the authorities was arbitrary being violative of Article 14 of the Constitution and the un-communicated entries would not have been made the foundation for consideration of promotion. Having heard the learned counsels appearing for the parties, this court is of the view that the issue involved herein is squarely covered by the decision rendered in Dev Dutt case and affirmed in Sukhdev Singh case with the result that the proceedings of the DPC and the order dated 01-02-2014 issued in consequence thereof, are not sustainable in law. 8. For the reasons stated herein above, the instant writ petition is allowed and consequently, the proceedings of the DPC meeting held on 28-12-2013 and the order dated 01-02-2014 issued by the Deputy Secretary appointing the private respondent on promotion to the post of Joint Director of Industries (G & M) are quashed and set aside. There shall be no order as to costs.” [17] Aggrieved by the said order of the learned Single Judge, the State has preferred W.A.No.23 of 2017 and the third respondent has preferred W.A.No.24 of 2017. By the common judgment dated 18.12.2018, both the appeals were allowed, thereby directing the petitioner herein to submit a representation to the Government. The operative portion of the judgment reads thus: “In view of the above legal position, the order of the learned Single Judge quashing the DPC proceedings and promotion of the appellant in WA No.24 of 2017 is set aside. In so far as non-communication of the ACRs entry and resultant non consideration of respondents claim in DPC proceedings requires modification in the light of judgment of the Hon’ble Supreme Court in the above cited cases. The appeals stand partially allowed as above in the light of the direction given in para No.44 in Dev Dutt’s case and para No.10 of Sukhdev Singh’s cases. In this case following the dicta of the Hon’ble Supreme Court, the State is directed to communicate the ACR entry of the respondent/writ petitioner within a period of one month from the date of receipt of this order. In this case following the dicta of the Hon’ble Supreme Court, the State is directed to communicate the ACR entry of the respondent/writ petitioner within a period of one month from the date of receipt of this order. Thereafter, the respondent/ writ petitioner is at liberty to make a representation, if he so chooses, against such entry within one month after receipt of the ACR entry. The representation, if any, will be decided by the Government within two months from the date of receipt of such representation. If the representation is accepted and entry is upgraded, the respondent/writ petitioner claim will be considered in a review DPC, which shall be completed within three months after the claim has been considered favourably. Interim order passed in this appeal to continue till the issue is finally concluded by the official respondent on the time line as indicate above. Both the appeals stand allowed accordingly.” [18] It appears that in compliance with the directions issued by the Division Bench of this Court, the Deputy Secretary to the Government addressed a letter dated 2.2.2019 to the Director (Trade, Commerce and Industry) enclosing true certified copies of ACRs for the period 2006-07, 2007- 08 and 2008-09 in respect of the petitioner which were placed before the DPC held on 28.12.2013. [19] On a perusal of the assessment, it is seen that for the year 2007- 08, the Reporting Officer has stated the grading of the petitioner as under: “Grading:- He can be graded as “Good” on the whole in consideration of the forgoing observations.” In the remarks, the Reviewing Officer graded as under: “Graded as “Very Good” as in the forgoing assessment” [20] Similarly, for the year 2008-09, the Reporting Officer has stated the grading of the petitioner as under: “Grading:- He may be graded as “Good” based on the forgoing observations.” In the remarks of the Reviewing Officer, it has stated as under: “Graded as “Good” as in the forgoing assessment.” [21] For the year 2009-10, the assessment of the Reporting Officer is as under: “Grading:- “Outstanding” The remarks of the Reviewing Officer is as under: “Graded as “Good” as in the forgoing assessment.” [22] On a further perusal of the records, it is seen that for the year 2010-11, the grading of the Reporting Officer is “Outstanding” and the remarks of the Reviewing Officer is “Grading is accepted”. For the years 2018-19 and 2019-20, the assessment of the Reporting Officer is “He bears a good personality” and the remarks of the Reviewing Officer is “I rote the officer as Outstanding”. [23] Pursuant to the direction in the writ appeals, on 21.2.2019, the petitioner submitted a representation to the Principal Secretary, Textiles, Commerce and Industry Department to take up necessary steps to rectify/correct the wrong entry in his ACRs for the years 2006-07, 2007-08, 2008-09 and to upgrade the ACRs for the aforesaid period to the outstanding level and hold a review DPC to consider his case. [24] It appears that upon receipt of the representation from the petitioner, meeting of the Committee to examine the representation was held on 15.3.2019 in compliance with the judgment dated 18.12.2018 and in the resolution of the meeting the issues discussed and the deliberations and discussions were mentioned. In the said meeting, it has been decided to approach the High Court to get clarification of certain points. Thereafter, on 22.4.2019, the Director addressed a letter to the Additional Government Advocate to get the judgment dated 18.12.2018 passed in W.A.Nos.23 and 24 of 2017 clarified. In response to the same, on 24.5.2019, the State Government counsel addressed a letter to the Director (Trade, Commerce and Industries) stating as under: “Thus, in my opinion, the only procedure to be followed while disposing the representation, even if, the entry in the ACR is not related to adverse entry, is the procedure quoted above and as such, the Principal Secretary, Trade, Commerce & Industries is the competent authority to consider and dispose of the representation submitted by the Shri Kh.Dilip Singh. With reference to the non-availability of the documents/records in the ACR, I am of the opinion that the competent authority has to examine and consider the representation on the basis of the material available on record. Further, with regard to the issue relating to the recommendation of major penalty against the junior officer, it may be pointed out that the said issue was also raised by Shri Kh. Dilip Singh before the Single Bench as well as Division Bench of the Hon’ble High Court of Manipur. Further, with regard to the issue relating to the recommendation of major penalty against the junior officer, it may be pointed out that the said issue was also raised by Shri Kh. Dilip Singh before the Single Bench as well as Division Bench of the Hon’ble High Court of Manipur. However, the Hon’ble Court has not granted any relief on the issue and as such, the same cannot be now reopened by the Department, In other words, as per the direction of the Hon’ble Division Bench, the only issue to be decided by the Department is as to whether the entry in the ACR of Shri Kh. Dilip Singh should be upgraded or not on the basis of the material available on record. Now, in view of the above, the Department of Trade, Commerce & Industries may now examine and consider the representation submitted by Shri Kh. Dilip Singh and issue a speaking order. If the Department is not satisfied with my opinion as stated above, the advice of the Ld. Advocate General, Manipur may kindly be obtained so that the representation as directed by the Hon’ble Division Bench may be disposed of at the earliest.” [25] Thereafter, on 7.6.2019, a notice was issued re-scheduling the meeting on 12.6.2019 at 4.00 p.m. Accordingly, on 12.6.2019, the meeting was held, wherein it was decided to call the then Reporting Officer for consultation and establish the reasons for the ACRs grading given to the petitioner before taking any decision. On 11.10.2019, again a meeting notice was issued scheduling the meeting on 14.10.2019 and on 14.10.2019 the meeting was held. In paragraph 5 of the resolution of meeting, it has been stated as under: “5. After a detailed discussion, the members decided that the Director (Trade, Commerce & Industries) and Deputy Secretary (TC&I), Govt. On 11.10.2019, again a meeting notice was issued scheduling the meeting on 14.10.2019 and on 14.10.2019 the meeting was held. In paragraph 5 of the resolution of meeting, it has been stated as under: “5. After a detailed discussion, the members decided that the Director (Trade, Commerce & Industries) and Deputy Secretary (TC&I), Govt. of Manipur shall hold minute discussions with Department of Personnel and suggest options which may be adopted by the Government including exploring the possibility of creation of supernumerary post(s) to meet the requirements arising out of the Hon’ble High Court’s orders, which may be purely for the specific purpose of implementing the orders of the Hon’ble High Court in the abovementioned cases and shall stand automatically abolished on the retirements/vacation of the proposed supernumerary post(s. it was also highlighted that the concerned officers are to retire on superannuation in February, 2021 and January, 2022 respectively which means the proposed supernumerary post(s)may be considered for creation for the period of a couple of years only. Director (Trade, Commerce & Industries) may submit concrete proposals for consideration of the Government and the Cabinet if required, as per the outcome of the above discussions/consultations.” [26] Thereafter, on 5.8.2020, the impugned order came to be passed by the first respondent. On a perusal of the impugned order, it is seen that the order discussed the events that have commenced from the beginning and finally, the first respondent observed as under: “19. Taking into consideration the above facts and circumstances, the Governor of Manipur is pleased to decide that the petition/representation of Shri Kh. Dilip Singh has been duly considered by the Department and rejected henceforth subject to any decision that may be taken by the State Cabinet. 20. The Director of Trade, Commerce and Industries, Manipur is advised to take necessary corrective measures and ensure due diligence in matters related to personnel in order to avoid such cases in future.” [27] It is submitted by the learned Government counsel appearing for the first respondent that the said proposal was not accepted by the State Cabinet. [28] It appears that the Government constituted a Committee consisting of the Principal Secretary (Trade, Commerce and Industries), the Secretary (Law), the Director (Trade, Commerce and Industries) and representatives of the Department of Personnel to examine the representation of the petitioner dated 21.2.2019. [28] It appears that the Government constituted a Committee consisting of the Principal Secretary (Trade, Commerce and Industries), the Secretary (Law), the Director (Trade, Commerce and Industries) and representatives of the Department of Personnel to examine the representation of the petitioner dated 21.2.2019. In fact, the Committee met several times and also the authorities concerned obtained clarification from the State counsel in respect of the consideration of the petitioner’s representation. At one stage, in the meeting held on 14.10.2019, it was considered to explore possibilities to provide avenues to both the petitioner and the third respondent for promotion either by way of modification of Recruitment Rules or one time relaxation of Recruitment Rules or by way of creation of supernumerary post(s) to meet the requirement arising out of the order of the Division Bench of this Court. In this regard, the Department of Personnel and the Department of Finance were also discussed. However, the Department of Personnel did not support the proposal for creation of one supernumerary post each of Joint Director (Industries) and Additional Director (Industries) as there is a ban on creation of posts in Manipur State. Further, the Finance Department also did not support the creation of the supernumerary post retrospectively for promotion. Since the Division Bench of this Court directed the Government to decide on the representation submitted by the petitioner within a period of two months and since the concerned Reporting, Reviewing and Accepting Officers have retired and it may not be possible to recall the basis of the decision taken and the period of ACRs to be decided for upgradation are for the years 2006-07, 2007-08 and 2008-90 whose grading are “very good” “good” and “good” respectively and opining that the ACR grading “good” and “very good” are not adverse remarks, the Department decided that a review DPC may not be necessary. Since there is no illegality in the said decision taken by the Department, the non-holding of review DPC will in no way help the case of the petitioner. Sufficient and justifiable ground has been stated by the Department for non-holding of the review DPC. Since there is no illegality in the said decision taken by the Department, the non-holding of review DPC will in no way help the case of the petitioner. Sufficient and justifiable ground has been stated by the Department for non-holding of the review DPC. [29] Since the issuance of the impugned order dated 5.8.2020, thereby disposing the representation submitted by the petitioner was only after careful examination and consideration of all the relevant materials available on record as well as the provisions of the applicable rules, this Court finds no illegality or irregularity in the impugned order. [30] It is to be mentioned that the petitioner wants the authority to consider and dispose of the representation in his favour. The petitioner cannot dictate the authority to consider the representation in favour of the petitioner. It is reiterated that there is no illegality and irregularity in the impugned order and the impugned order has been passed in accordance with the directions issued by the Division Bench of this Court in W.A.Nos.23 and 24 of 201, dated 18.12.2018 and also in accordance with the applicable provisions of law. [31] For the foregoing discussions this Court is of the view that there is no merit in the claim of the petitioner and accordingly, the writ petition is liable to be dismissed. [32] In the result, the writ petition is dismissed. However, there will be no order as to costs.