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2022 DIGILAW 265 (MEG)

Union of India v. Virender Baboria

2022-10-10

SANJIB BANERJEE, W.DIENGDOH

body2022
JUDGMENT Sanjib Banerjee; CJ. - The appeal arises out of the respondent's writ petition which has been allowed by the order impugned dated March 13, 2020. 2. The appellant employer is particularly aggrieved by the reasons indicated at paragraph 6 of the impugned order and what is submitted to be the erroneous inference drawn from a document which appears at page 198 of the appeal papers. 3. The facts are not much in dispute. The writ petitioner joined the Assam Rifles as a Medical Officer on January 1, 2004. Under the Dynamic Assured Career Progression Scheme (DACP), every Medical Officer was entitled to be promoted after completing four years in service, subject to meeting the minimum requirements in the Annual Confidential Reports. The relevant scheme also provided that a Medical Officer promoted as a Senior Medical Officer would be entitled to be promoted to Chief Medical Officer after completing five years in service as SMO, again subject to meeting the benchmark requirements as to performance recorded in the ACRs. 4. According to the appellants, the writ petitioner did not meet the minimum standards to be promoted immediately after completion of four years of service on January 1, 2008. Indeed, the appellants submit that successive ACRs of the writ petitioner revealed less than adequate performance or medical condition till the Departmental Promotion Committee considered the writ petitioner's case in 2013. 5. By a notification issued on October 29, 2013 (though the date is written in the document in hand, there is no dispute regarding the same), the writ petitioner was granted promotion to the post of SMO but with effect from October 1, 2008. In other words, the document of October 29, 2013 acknowledged that the writ petitioner was entitled to be promoted with effect from January 1, 2008 which may not have been done erroneously or otherwise and, as such, the benefit was afforded to the writ petitioner from the date it became due as per the career progression scheme. 6. Since the writ petitioner's initial promotion dated back to 2008, his case for next promotion to the post of CMO was taken up for consideration in 2015. At a DPC held on March 17, 2015, the writ petitioner's name was recommended for promotion as CMO with effect from January 1, 2013. 7. 6. Since the writ petitioner's initial promotion dated back to 2008, his case for next promotion to the post of CMO was taken up for consideration in 2015. At a DPC held on March 17, 2015, the writ petitioner's name was recommended for promotion as CMO with effect from January 1, 2013. 7. As is the usual practice, the entire set of recommendations was forwarded to the Union Ministry of Home, under which Assam Rifles functions. The Union Ministry objected by a letter of June 12, 2015, pointing out that the writ petitioner had previously been erroneously promoted with retrospective effect as the writ petitioner could only have been promoted prospectively from the date of the recommendation of the DPC which was October 29, 2013. 8. Pursuant to the receipt of the relevant letter from the Union Ministry of Home, the employer purported to communicate to the writ petitioner, by a notice dated July 17, 2015, that the writ petitioner's promotion to the post of SMO would be taken to be October 29, 2013 and not January 1, 2008, as indicated earlier. 9. In a sense, the relevant letter amounted to reducing the writ petitioner in rank for the period January 1, 2008 to October 28, 2013 and the employer rescinding its earlier decision without any reason and without affording the writ petitioner any opportunity to contest the same. It was in such circumstances that WP (C) No.232 of 2015 came to be filed. 10. In course of the documents disclosed by the employer in the proceedings under Article 226 of the Constitution, it came out that there were adverse remarks in the writ petitioner's ACRs for several years up to 2012, but the writ petitioner had not been made aware of such adverse remarks, whether contemporaneously or at all. It is in such circumstances that the matter took a completely different turn. Added to this, was the disclosure of a document that appears at page 198 of the appeal papers which reveals that the ACRs of the writ petitioner in his rank as SMO had been conducted from 2009-10 and that he was assessed to have performed well enough to be eligible to be considered for promotion to the post of CMO in 2015 and granted the promotion with effect from January 1, 2013. 11. There was, no doubt, a serious anomaly. 11. There was, no doubt, a serious anomaly. If the writ petitioner had actually discharged the duties and functions as Medical Officer till October 29, 2013 and was promoted as SMO only thereafter, notwithstanding the retrospective promotion, the writ petitioner's performance as SMO could not have been assessed prior to October 29, 2013. The document which appears at page 198 of the appeal papers was made the basis of the impugned order and the Single Bench found that the writ petitioner could not be, in effect, lowered in rank without the writ petitioner being afforded an opportunity to contest the same. 12. It appears that a mistake was committed by the employer in not communicating the adverse remarks in the writ petitioner's ACRs which led to the writ petitioner not being promoted till 2013. However, since the general rule is that an employee must be communicated an adverse remark in his ACR to afford the concerned employee to make a contemporaneous representation thereagainst, it appears that the employer in this case rectified the mistake by promoting the writ petitioner in the year 2013 but from the date of January 1, 2008 when the promotion otherwise became due to the writ petitioner under the DACP scheme. There is no doubt that the recommendations made pursuant to the DPC conducted on October 29, 2013 were forwarded to the Union Home Ministry and the recommendations were given effect to upon receiving the approval of the Ministry. 13. It is apparent that the employer considered the writ petitioner to have been in the promoted post of SMO with effect from January 1, 2008 for the writ petitioner's case for further promotion to the post of CMO to be taken up for consideration in 2015. However, upon the recommendations being forwarded to the Union, the mistake was realised. But by such time, the mistake was incapable of correction. Indeed, the writ petitioner has suffered nevertheless since the writ petitioner ought to have been promoted to the post of CMO on or about January 1, 2013 but was, in fact promoted to such post in 2018. 14. Since the writ petitioner makes no grievance as to the belated promotion to the post of CMO, despite having good ground therefor, such aspect of the matter cannot be taken into consideration. 14. Since the writ petitioner makes no grievance as to the belated promotion to the post of CMO, despite having good ground therefor, such aspect of the matter cannot be taken into consideration. At the same time, the mistake committed by the employer or the Union in 2013 by granting retrospective promotion to the writ petitioner with effect from January 1, 2008 could not have been corrected in 2015. 15. The service jurisprudence in matters pertaining to public employment that has indigenously developed in this country founded on salutary principles of administrative law and the fundamental canons of natural justice, requires adverse remarks in annual confidential reports to be immediately communicated to the concerned employee. Upon receipt of such communication, the employee may make a representation against the same if he perceives the adverse remark to be unwarranted. The representation is then considered by the employer and dealt with on merits. Oftentimes, since a large number of ACRs are prepared by individual officials, mistakes creep in. Further, since such ACRs are generally prepared without reference to the concerned employee, certain aspects which may or may not be relevant are taken into account to the prejudice of the employee though there may not be any fault on the part of the employee in such regard. 16. The jurisprudence that has now developed commands that in the absence of the contemporaneous communication of an adverse remark to the concerned employee, the impact of the adverse remark cannot be foisted on the employee. 17. As a consequence, since it is the admitted position in this case that the writ petitioner was not made aware of the adverse remarks in his ACRs during the relevant time, the action of the employer in promoting the writ petitioner with retrospective effect must necessarily be seen to be the correction of the mistake on the part of the employer to withhold promotion without justifiable cause. Even in 2013, if the adverse remarks had been forwarded to the writ petitioner, the situation would not have been altered since such communication would have been belated as the promotion fell due on January 1, 2008. 18. Even in 2013, if the adverse remarks had been forwarded to the writ petitioner, the situation would not have been altered since such communication would have been belated as the promotion fell due on January 1, 2008. 18. Accordingly, for reasons quite distinct from those evident from the judgment and order impugned dated March 13, 2020, the appeal is dismissed and the writ petition is allowed by setting aside the notice dated July 17, 2015 and leaving the parties to work out their remedies as a consequence thereof. 19. The writ petitioner-respondent will also be entitled to costs assessed at Rs.15,000/-. 20. MC (WA) No.6 of 2022 stands disposed of.