Jayanta Kumar Mitra vs Union Of India & Others
2023 Latest Caselaw 6279 Cal

19.09.2023
rpan/10
                                  WPCT 71 of 2008
                               Jayanta Kumar Mitra
                                     - Versus -
                              Union of India & Others


                         Ms. Debapriya Mitra
                                      ... for the Petitioner.

                         Mr. Dayashankar Mishra
                                     ... for the UoI/Respondents.

The present writ petition has been preferred

challenging the judgment dated 18th January, 2008 passed

by the learned Tribunal in an original application, being

O.A. No.1140 of 2006.

Ms. Mitra, learned advocate appearing for the

petitioner submits that the petitioner was a member of the

Indian Railway Traffic Service and in recognition of his

meritorious service he got successive promotion upto the

level of Senior Administrative Grade. He was thereafter

considered for promotion to the next higher level, being the

Higher Administrative Grade (in short, HAG) in the year

2006 along with other officers. Arbitrarily, the petitioner

was denied promotion. Aggrieved thereby, he approached

the learned Tribunal.

According to Ms. Mitra, the learned Tribunal did not

take into consideration the categoric contention of the

petitioner that he was denied promotion on the basis of

uncommunicated adverse entries in his Annual

Confidential Reports (in short, ACRs). The authorities

illegally proceeded by fixing a benchmark of 'Very Good +'

without communicating the ACRs of the previous five years

which were taken into consideration. Such non-

communication of entries in the ACRs is violative of the

principles of natural justice. The learned Tribunal glossed

over the said issues, as argued and did not return any

finding on the same. Reliance has been placed upon the

judgments delivered in the cases of Dev Dutt Vs. Union of

India and Others, reported in (2008) 8 SCC 725, Abhijit

Ghosh Dastidar Vs. Union of India and Others, reported in

(2009) 16 SCC 146 and Sukhdev Singh Vs. Union of India

and Others, reported in (2013) 9 SCC 566.

Ms. Mitra further argues that the learned Tribunal

ought to have appreciated that the selection under

consideration was not one on the basis of the comparative

merit. The test was one of suitability of an officer drawn

up for consideration according to seniority and while

conducting the said process, it was incumbent upon the

authorities to communicate the adverse entries as the

benchmark fixed was 'Very Good +'.

Per contra, Mr. Mishra, learned advocate appearing

for the respondents submits that there is no infirmity in

the judgment impugned. The authorities have strictly

proceeded on the basis of the procedure laid down for

filling up the post of HAG. The petitioner was under the

impression that certain adverse remarks have not been

communicated to him, however, there were no adverse

remarks in the petitioner's ACRs in the preceding five

years. Mere absence of adverse remark does not

necessarily mean that the petitioner was otherwise fit for

promotion to HAG. The scope and ambit of consideration

for promotion was not restricted only to the benchmark

but there were other parameters, as disclosed in the

memorandum dated 3rd June, 2002.

Heard the learned advocates and considered the

materials on record.

A perusal of the judgment impugned reveals that the

argument as regards non-communication of adverse

remark in the ACRs, as advanced by the petitioner, was

duly considered. The selection in question was pertaining

to a grade in the top order of the administrative hierarchy

and the issue of selection of such officers was not

restricted only to the benchmark as set by the committee

but factors pertaining to overall grading encompassing

several years' performance, pertinence and aptitude were

the other parameters taken into consideration. The process

of selection as laid down by the Ministry of Railways had

been strictly followed. In the said conspectus, the learned

Tribunal rightly refused to exercise discretion in favour of

the petitioner.

It is well known that a decision is an authority for

what it decides and not what can logically be deduced

therefrom. Even a slight distinction in fact or an

additional fact may make a lot of difference in decision

making process. The judgment is a precedent for the issue

of law that is raised and decided and not observations

made in the facts of any particular case. Plentitude of

pronouncements leaves cleavage in the opinions formed in

the respective cases. There is no dispute as regards the

proposition of law as laid down in the judgments upon

which reliance has been placed by Ms. Mitra, however, the

same are distinguishable on facts. In the case of case of

Dev Dutt (Supra), the issue was relating to promotion to the

post of Superintending Engineer. In the case of Abhijit

Ghosh Dastidar (Supra) the Court observed that the entry

of 'good' ought to have been communicated as he was

having 'very good' in the previous years and in the case of

Sukhdev Singh (Supra) the remarks of 'outstanding/very

good' were downgraded to 'good' .

The learned Tribunal, upon dealing with all the

factual issues arrived at specific findings and we do not

find any error, least to say any patent error of law in the

judgment impugned.

The writ petition, being WPCT 71 of 2008 is,

accordingly, dismissed.

There shall, however, be no order as to costs.

Urgent photostat certified copy of this order, if

applied for, be supplied to the parties, upon compliance of

all requisite formalities.

(Partha Sarathi Chatterjee, J.) (Tapabrata Chakraborty, J.)