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2022 DIGILAW 125 (MEG)

Sushil Narayan Chaudhary v. Union of India

2022-05-19

H.S.THANGKHIEW

body2022
JUDGMENT 1. The petitioner is aggrieved with the impugned order dated 11.11.2020, whereby in exercise of powers conferred by Rule 48(1) (b) of the Central Civil Service (Pension) Rules, 1972, the respondents issued notice to the petitioner that on completing 30 years of qualifying service for pension on 20.06.2019, he was retired from service on the forenoon of 01.03.2021. It is also the case of the petitioner that no adverse ACR had ever been communicated to him, and as such, the same could not have been taken for consideration in the review of his service beyond 30 years of qualifying service. 2. The respondents by their affidavit have stated that the service review of the petitioner was conducted on 03.03.2020, wherein he was recommended for further retention in service, but as it was discovered that the Service Review Board was not in order as per laid down policy, the same was rejected by the respondent No. 2 and thereafter, fresh Service Review Board was carried out on 08.08.2020. Thereafter, it appears the Annual Confidential Reports (ACRs) for the years 2015-2016, 2016-2017, 2017-2018, and 2018-2019 on being examined by the Service Review Board, he was found ineligible for further retention in service due to lacking in ACR criteria, and consequently his retention in service was not approved by the Board. It is also contended that in view of this aspect, retiring pension notice was issued by order dated 11.11.2020, fixing his retirement date on 01.03.2021, giving him a clear 3(three) months' notice, to which however, the petitioner never represented against. 3. It is submitted by Mr. R. Jha, learned counsel for the petitioner that this case is covered by the judgment of a Division Bench of this Court dated 23.03.2022, passed in MC(WA) No. 64 of 2021 in the case of Union of India & Ors. v. Joseph K.S , and that the petitioner shall therefore be entitled to similar relief. He submits that the ACRs were never communicated to the petitioner and that as per the recommendation of the Service Review Board (Annexure-12 to the affidavit-in-opposition), it is seen that the petitioner was not recommended for promotion only in the year 2015-2016, whereas his subsequent performance had been up to the mark and had been graded well thereafter. 4. He submits that the ACRs were never communicated to the petitioner and that as per the recommendation of the Service Review Board (Annexure-12 to the affidavit-in-opposition), it is seen that the petitioner was not recommended for promotion only in the year 2015-2016, whereas his subsequent performance had been up to the mark and had been graded well thereafter. 4. Having heard the submissions of the learned counsel for the parties and having examined the above noted judgment placed by the petitioner, this Court is in agreement with the counsel for the petitioner that the matter is covered by the said judgment. For the sake of convenience Paragraphs 44, 45 and 46 which are relevant are reproduced herein below: '44. However, in the light of the dictum in Sukhdev Singh, the law of the land is now that all remarks in the ACR should be communicated to the concerned employee. That would preclude any fine distinction being made as to what may amount to be an adverse remark and what may not. 45. For the foregoing reasons, the failure on the part of the appellant-employer to communicate to the first respondent-writ petitioner that he had not been recommended for promotion in the year 2014-15 is seen to have occasioned grave prejudice to the writ petitioner as he was denied a chance to make a representation thereagainst. As a consequence of the writ petitioner not being recommended for promotion in the relevant year, the writ petitioner's fate was sealed and he was precluded from being considered for retention in service when the time to consider the same arrived. In effect, as a consequence of the applicable rules, it was known to the employer in 2014-15 that the writ petitioner would have to retire in 2017 but the writ petitioner had no inkling that his case for retention in service would not be considered at all since he had, admittedly, not been informed that he had not been recommended for promotion in 2014-15. 46. In view of the above and the additional reasons furnished, the order impugned does not call for any interference. The writ petition is allowed by permitting the writ petitioner to make a representation to the appellant-employer against the refusal to recommend him for promotion in 2014-15 (since the writ petitioner is now aware of such adverse action and any further formal communication thereof would be an idle formality). The writ petition is allowed by permitting the writ petitioner to make a representation to the appellant-employer against the refusal to recommend him for promotion in 2014-15 (since the writ petitioner is now aware of such adverse action and any further formal communication thereof would be an idle formality). If the adverse action is reversed, even if he is not promoted as a consequence of such correction, it will be open to the appellant-employer to communicate a decision to the writ petitioner within a fortnight of receiving his representation as to whether to retain him in service for the full complement of time; or else, the employer may require the writ petitioner to compulsorily retire. In case the decision is of compulsory retirement, it will take effect immediately upon the writ petitioner being communicated the decision by a notice served at the writ petitioner's usual address or by the notice being made over to him by hand. Till such time that the writ petitioner continues in service in terms of this order, he shall be entitled to all emoluments and benefits in accordance with the rules as if he had not compulsorily retired pursuant to the earlier order. The relevant order of September 2, 2016, insofar as it concerns the writ petitioner, is set aside. If, however, due to the pendency of the proceedings in this Court, the writ petitioner would have retired prior to today upon being retained in service in 2016, he will be entitled to full benefits as if he continued in service till the date of his retirement upon attaining the age of 60 years.' 5. In this view of the matter, the writ petitioner will be permitted to make representations against the adverse entries of 2015-2016, against the refusal to recommend him for promotion, and consequently the respondents are to act in accordance with the direction contained in the above noted quoted paragraphs of the Division Bench of this Court. 6. Writ petition accordingly stands disposed of.