Gauhati High Court
Hemen Mahanta @ Hemendra Chandra ... vs The State Of Assam And 4 Ors on 19 March, 2021
Page No.# 1/4
GAHC010138012020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4067/2020
HEMEN MAHANTA @ HEMENDRA CHANDRA MAHANTA
S/O- LT. SAHADEV MAHANTA, R/O- H.NO.8, SWARNAGIRI PATH,
NIZARAPAR, CHANDMARI COLONY, P.O. AND P.S. CHANDMARI, GHY-03,
DIST.- KAMRUP (M), ASSAM
VERSUS
THE STATE OF ASSAM AND 4 ORS.
REP. BY ITS COMM. AND SECY., HANDLOOM, TEXTILE AND SERICULTURE
DEPTT., DISPUR-6, GHY, ASSAM
2:THE CHAIRMAN
ASSAM KHADI AND VILLAGE INDUSTRIES BOARD
CHANDMARI
GHY-3
3:THE CHIEF EXECUTIVE OFFICER
ASSAM KHADI AND VILLAGE INDUSTRIES BOARD
CHANDMARI
GHY-3
4:JAKIR KHAN
(THEN U.D.A (HQ) NOW SUPERINTENDENT) ASSAM KHADI AND VILLAGE
INDUSTRIES BOARD
CHANDMARI
GHY-3
5:MANALISHA DEKA
(THEN U.D.A (HQ) NOW SUPERINTENDENT) ASSAM KHADI AND VILLAGE
INDUSTRIES BOARD
CHANDMARI
GHY-
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Advocate for the Petitioner : MR B M DEKA
Advocate for the Respondent : SC, HANDLOOM AND TEXTILE
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
ORDER
19.03.2021
Heard Mr. B.M. Deka, learned counsel for the petitioner. Mr. P.K. Munir, learned counsel
appears for the respondent nos.2 and 3. Mr. I. Zamir appears on behalf of Mr. R. Dhar,
learned counsel for the respondent no.1. No one appears for respondent nos.4 and 5, though
the Lawazima Court's order dated 20.01.2021 states that service of notice is complete against
the respondent nos.4 and 5.
2. The brief facts of the case is that the petitioner is holding the post of UDA (HQ) in the
office of the Assam Khadi and Village Industries Board. The petitioner's grievance is that
during consideration for promotion from the post of UDA to Superintendent, Assam Khadi and
Village Industries Board, the respondent nos.4 and 5, who are juniors to the petitioner have
been promoted without considering the case of the petitioner.
3. Mr. P.K. Munir, learned counsel for the respondent nos.2 and 3 submits that the
petitioner could not be promoted to the post of Superintendent, in view of there being an
adverse remark in the petitioner's ACR for the year 2018-2019. He also submits that the
adverse remark was not communicated to the petitioner and the adverse remark had been
taken into consideration by the Departmental Promotion Committee (DPC), while considering
promotion from the post of UDA to Superintendent.
4. I have heard the counsels for the parties.
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5. In the case of Dev Dutt vs. Union of India and Others, reported in (2008) 8 SCC 725,
the Apex Court has held that every entry in the ACR of a public servant must be
communicated to him within a reasonable period, whether it is a "poor", "fair", "average",
"good" or "very good" entry. This is because non-communication of such an entry may
adversely affect the employee in two ways: (1) had the entry been communicated to him he
would know about the assessment of his work and conduct by his superiors, which would
enable him to improve his work in future; (2) he would have an opportunity of making a
representation against the entry if he feels it is unjustified, and pray for its upgradation.
The Apex Court further held that when an entry is communicated to the public
servant, the public servant should be allowed to make a representation against the entry to
the authority concerned and the representation must be decided by an authority, higher than
the one who gave the entry. The Apex Court further held in paragraph 44 of Dev Dutt (supra)
that if the entry is upgraded, the officer should be considered for promotion retrospectively
by the Departmental Promotion Committee and if the officer gets selected for promotion
retrospectively, he should be given all his arrears.
6. It is settled law that promotion should not be denied on the basis of un-communicated
adverse remarks. The same seems to have done in the present case. However, keeping in
view the judgment of the Apex Court in Dev Dutt (supra), the respondents are directed to
communicate the adverse remark that has been recorded in the petitioner's ACR for the year
2018 - 2019 and give him an opportunity to make a representation against the same, within
a specified time period. Thereafter the representation by the petitioner, if any, should be
decided by an authority higher than the person who gave the adverse entry. If the authority
higher than the authority who gave the adverse entry upgrades the entry/grading in the
petitioner's ACR, the respondents shall convene a Review DPC to consider the promotion of
the petitioner retrospectively, i.e. from the date his juniors were promoted. Thereafter if the
petitioner is promoted, he should be given all consequential benefits including seniority. The
entire exercise should be conducted by the respondents within a period of 10 (ten) weeks
from the date of receipt of a certified copy of this order.
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7. The writ petition is accordingly disposed of.
JUDGE
Comparing Assistant
