Calcutta High Court (Appellete Side)
Anindyam Bhattacharjee vs Union Of India & Ors on 11 January, 2023
1
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
THE HON'BLE JUSTICE HARISH TANDON
&
THE HON'BLE JUSTICE PRASENJIT BISWAS
W.P.C.T. 4 of 2022
Anindyam Bhattacharjee
Vs.
Union of India & Ors.
With
W.P.C.T. 97 of 2021
Union of India & Ors.
Vs.
Anurag Tripathy
Appearance:
For the Petitioner : Mr. Soumya Majumder, Adv.
(W.P.C.T 4 of 2022) Ms. Sanjukta Dutta, Adv.
Ms. Shagun Baid, Adv.
For the UOI : Mr. Siddhartha Lahiri, Adv.
For the Private Respondent : Mr. Surajit Samanta, Adv.
Mr. Biswajit Samanta, Adv.
Mr. Debojit Samanta, Adv.
Ms. Sohini Samanta, Adv.
Judgment On : 11.01.2023
PRASENJIT BISWAS, J.:
The present petition is preferred by the petitioner challenging the
impugned order dated 16.09.2021 passed by the Central Administrative
Tribunal in O.A No.350/01892/2018 with M.A. No.350/00562/2020,
whereby and whereunder the tribunal directed the Railway Authority to
confirm the selection of the Respondent No.4 while finalizing the
empanelment of Group-B panel of the post of ACM/ACO maintaining his
inter se merit position and without going to further written examination or
viva voce.
Briefly stated, the facts giving rise to the present petition are as
follows:
The South Eastern Railway initiated a recruitment process for
filling up the post of Assistant Commercial Manager/Assistant Claims
Officer through Limited Departmental Competitive Examination. The
Respondent No.4 appeared in the said written examination and scored
highest marks and also appeared in the viva voce but the result could not
be published on account of procedural irregularities. Ultimately the entire
selection process was cancelled by the Authority. Finding no other
alternative this respondent filed an application before the tribunal being
O.A 350/1522/2017 challenging cancellation of the said selection process.
The Tribunal passed the following order dated 25.09.2018 inter alia
that-
"Hence, with the consent of the parties, we hereby direct the
competent respondent authority to consider the case of the applicant, if
otherwise qualified for selection. The respondent, however, are at liberty to
proceed against the candidate allegedly guilty of procedural irregularity and
reserve certain posts subject to outcome of such inquiry/investigation against
the allegedly delinquent candidate.
If the applicant and other similarly placed candidates are free
from any allegations and if they qualify on merit and as per Rules, the
competent respondent authorities may like to confirm their selection as per
law within a period of 16 weeks from the date of receipt of a copy of this
order."
Despite order of the tribunal the Respondent Authority notified
fresh empanelment process on 08.10.2018 followed by a further notification
on 04.12.2018 containing two eligibility lists for participation in the
selection process.
It is submitted on behalf of the petitioner Anurag Tripathy that the
authorities cancelled the earlier selection process and he appeared in the
subsequent selection process under the accelerated promotion examination
initiated in the year 2018. The participation and consideration of the
respondent no.4 in the earlier examination was found to be flawed due to
his irregular marks of ACRs. The Tribunal disposed of O.A No.1892 of
2018 filed by the respondent no.4 granting leave to the Authority to fill up
the vacant post and to confirm the selection of the respondent no.4 with the
marks earlier obtained by him in the written examination and viva voce. It
is further submitted on behalf of the petitioner that the Tribunal
contradicted itself in the various orders on the basis of the application filed
by the respondent no.4 and if the selection of this respondent is allowed to
carry forward till the stage of the appointment to the post against the quota
for accelerated promotion, then there will be miscarriage of justice and
fraud in selection process.
It is further submitted on behalf of the petitioner that the Tribunal
did not take into consideration the ACRs of the respondent no.4 in the
selection process held in the year 2016 and his ACRs had been upgraded at
the reporting stage allegedly by his one close relative by rewriting the same
afresh for the sole purpose of giving benefit to him. The Charge Sheet had
been issued to this respondent no.4 for adopting unfair means in the
selection process and the major penalty order has been issued to him and
his relative by the authority.
Learned Counsel further assailed that petitioner was not a party
before the Tribunal in any of the application filed by the respondent no.4
and in fact, he was not aware of the carriage of proceedings till
substantially a long period of time.
Learned Advocate referred a decision of Hon'ble Apex Court passed
in Reshma Sultana vs. State of Karnataka, reported in 2022 SCC
OnLine 586 in this context and submitted that as the entire selection
process was found to be vitiated due to fraud; so there is no irregularity in
subsequent/fresh notification which was published after following the due
process or selection as required.
Learned Counsel for the Authority assailed before us that the
administration cancelled this selection process in its midway when certain
unambiguous irregularities were surfaced for the sake of transparency and
propriety. So, the candidates do not have any stand, since the selection was
not finalized and the panel was not published. It is the further submission
of the learned counsel that the administration has full rights to cancel the
selection in an intermediate stage to hold it afresh, if certain wrongdoings
are perceived.
It is submitted on behalf of the authority that the private
respondent was subjected to a major penalty charge memorandum under
the Railways Servants (D and A) Rules, 1968 for allegedly concealing the
facts that the official who initiated his ACRs for the relevant period was
related to him. As per submission of the learned Counsel, the Tribunal
ought to have considered that there were serious irregularities which were
noticed by the DPC in the ACR of the private respondent for which the
entire selection process was cancelled to maintain the fairness and
transparency in the selection procedure as the authority wanted to
maintain a clean, unblemished, unbiased and fair image. So, the authority
never committed any illegality or irregularity while cancelling the selection
procedure which the tribunal ought to have kept in their mind while
passing the impugned order.
Mr. Samanta, learned Advocate appearing on behalf of the private
respondent submitted that the evaluation of the performance of his client
for the year 2016-17 was done by an independent authority not related to
the respondent no.4 and assessed as outstanding. It is further submitted
by the learned Counsel that his client appeared in the selection process and
scored highest mark in the written examination and also appeared in the
viva voce but the result could not be published on account of alleged
allegations of irregularities in his ACRs/ APRs. Being denied of his
legitimate expectation of empanelment to the Group-B Panel of ACM/ACO
he knocked the door of the tribunal who passed the impugned order rightly.
Instead of complying the direction passed by the tribunal the authority
notified a fresh empanelment process on 08.10.2018 followed by a further
notification dated 04.12.2018 which carries irregularities and illegalities.
Undoubtedly when an order is under challenge, it is permissible to
go behind the form and to ascertain about the true nature and character of
the same. We are not unmindful about the fact that it is responsibility of
the Reporting Officer to take reasonable care to disregard all subjective
considerations and bias that he may have one way or the other, while
preparing the annual confidential report of the Government employee. It is
for this reason that the report is required to be reviewed by the Reviewing
Officer. Further, responsibility of the Reviewing Officer would be to ensure
that quality of reporting is such as to give a complete account of person's
character and work covering bad as well as good points. A Reviewing Officer
has to correct the conscious or unconscious bias that may be there in the
assessment given by the reporting officer, particularly when any defect
remarks have been made.
Keeping in mind the rival contentions of the parties, the Annual
Confidential Reports of the Respondent No.4 were called and perused by
us. The names and designations of the Reporting, Reviewing and Accepting
Officers who graded the private respondent as under: -
Year Reporting Officer Reviewing Accepting Officer
Officer
2012-13 Rajiv Kumar Sharma, Rajiv Kumar Ajay Shankar Jha
DYCCM (SPL) Sharma, (Chief Commercial Manager,
jjj (Dy. CCM, Spl) PS/CATG)
2013-14 Jahar Basu, Rajiv Kumar Satyaki Nath
(Dy . (DYCCM, REF Sharma, (Chief Commercial
and VTS) (Dy. CCM, Spl)
Manager, FM)
2014-15 Rajiv Kumar Sharma Rajiv Kumar Ajay Shankar Jha,
(Dy. (DYCCM, SPL) Sharma, (Chief Commercial
(Dy. CCM, Spl)
Manager, PS/CATG)
2015-16 Rajiv Kumar Sharma Rajiv Kumar Satyaki Nath,
(Dy. (DYCCM, SPL) Sharma, (Chief Commercial
(Dy. CCM, Spl)
Manager, FM)
2016-17 Somnath Sanyal (Dy. Ajay Shankar Ajay Shankar Jha
CCM/PS) Jha, (Chief (Chief Commercial
Commercial
Manager, PS/CATG)
Manager,
PS/CATG)
A bare glance at the gradings of the private respondent in his
Annual Confidential Reports for the preceding four years were throughout
'Outstanding',
From the ACRs of the Respondent No.4, it is clear and apparent
that the Respondent no.4 was given uniform outstanding grading in
his confidential reports by both the initiating officer as also by the reviewing
officer for the years 2012-13, 2013-14, 2014-15 and 2015-16. In the last
report (2016--2017), the private respondent has also been rated
'Outstanding' where the said Rajiv Kumar Sharma was nowhere in the
picture. At the time of grading of ACR of the Respondent No.4 for the year
2012-13, 2013-14, 2004-14 and 2015-16 the alleged Rajiv Sharma was
either Reporting Officer or Reviewing officer but ultimately it was accepted
by the Accepting Officer by putting his signature therein who by
designation is the Chief Commercial Manager.
The entire dispute hovers around the reviewing the ACR of the
Respondent No.4 by his close relative including biasness, nepotism and
favouritism which led to scrapping of the entire selection process initiated
in the year 2016. Railways Authority decided to cancel this selection
process and published a further notification. An application was taken out
by the Authority during pendency of the tribunal application and on
17.07.2019 an interim order was passed by the Tribunal giving liberty to
the authority to proceed with the filling up the post in terms of latter
notification published keeping one post vacant. No allegation has been put
by any one regarding marks obtained by the respondent in written
examination and viva voce but such dispute travels on the circumference of
reviewing of the ACR of the respondent no.4. There is nothing in record to
show that Shri Rajiv Kumar Sharma was in anyway involved in the
selection process or earlier selection process was held contravening the
selection rule. It is evident from the materials on record that the
respondent no.4 secured highest marks in the written examination and
admittedly qualified in the selection process.
Pursuant to the direction passed by this Court dated 10.08.2022
the Principal Chief Commercial Manager, South- Eastern Railway
submitted report in respect of entire evaluation of performance of the
Respondent No.4 which held as under:
YEAR REVIEWED GRADING
2012-13 Very Good
2013-14 Average
2014-15 Average
2015-16 Average
2016-17 Good
From the aforesaid report it appears that the gradings of the
private respondent for the year 2012-13 and 2016-17 are Very Good and
Good respectively and gradings for the rest of the year is Average. We are
unable to find any reason assigned in that report which leaded the
Authority to give such remark about the performance of the respondent. All
that we wish to say that we are distressed to find that the reviewed
gradings in respect of the respondent no.4 as submitted in this report
cannot be sustained as it has been done without application of mind. We
are of the opinion that selection committee was required to take into
consideration only those ACRs/APRs which were conveyed to them while
adjudging his suitability. The private respondent no.4 was denied the
benefit of ACR/APR by the selection committee on the ground that it was
graded by his alleged relations. We are of the view that the private
respondent could not have been denied ACR/APR benefit at the time of
selection process which have been graded earlier and accepted by the
Accepting Office. When the concerned employees had an impeccable record
of service sudden adverse entry made against him should be on cogent
material. The doubt should of such a nature, as would reasonably and
consciously be entertainable by a reasonable man on the given material.
The reviewed grading as mentioned in the report granted to the Respondent
No.4 should not be taken into consideration for being considered for
promotion to the higher grade.
In our view, on the basis of the entries made in the Annual
Confidential Reports of the respondent no.4, no reasonable person could
form an opinion that his work and conduct was unsatisfactory. If the
competent authority had taken trouble to go through the record of the
petitioner, it could not have been possible for it to throw him out.
We, therefore, find no reason to quash the impugned order dated
16.09.2021 passed by the tribunal.
The Writ petition is, accordingly, dismissed.
No order as to cost.
Urgent Photostat certified copies of this judgment, if applied for, be
made available to the parties subject to compliance with requisite
formalities.
I agree.
(Harish Tandon, J.)
(Prasenjit Biswas, J.)
