WP(C)/814/2021
2022 Latest Caselaw 3656 Gua

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GAHC010014482021




                        THE GAUHATI HIGH COURT
       (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)

                                 WP(C)/814/2021

              Rupesh Kumar Sen
              S/O- Lt. Monoranjan Sen, Serving as Sub-Inspector of Statistics in the
              Office of the Dy. Director of Economics and Statistics, P.O. and P.S.
              Karimganj, Pin- 788710,
              Dist.- Karimganj, Assam,
              Permanent R/O- Hagjan Nagar,
              P.O. and P.S. Haflong, Pin- 788819,
              Dist.- Dima Hasao, Assam
                                                                   .................. Petitioner

                     -Versus-

              1. The State of Assam
              Rep. by the Principal Secy. to the Govt. of Assam,
              Transformation and Development Deptt., Dispur, Ghy-06, Dist.- Kamrup
              (M), Assam.
              2. The Addl. Secretary to the Govt. of Assam
              Transformation and Development Deptt.
              Dispur, Ghy-06
              Dist.- Kamrup (M), Assam.
              3. The Director of Economics and Statistics
              Assam, Beltola, Ghy-28
              Dist.- Kamrup (M), Assam.
              4. The Dy. Director of Economics and Statistics
                                                                                          Page No. 2/11

                    A.C. Sen Road (Near Head Post Office)
                    P.O. and P.S. Karimganj
                    Dist.- Karimganj, Assam
                    Pin- 788710.
                    5. Nitumoni Jigdung
                    Inspector of Statistics
                    C/O Office of the Director of Statistics (HQ)
                    Beltola, Ghy-28, Dist.- Kamrup (M), Assam.

                                                                       ...................Respondents

Advocates :

       Petitioner                                 : Mr. H.K. Das, Advocate

       Respondent nos. 1-4                        : Mr. T.C. Chutia, Additional Senior
                                                   Government Advocate, Assam
       Respondent no. 5                           : Mr. P.K. Sharma, Advocate.

       Date of Hearing and Judgment & Order       : 20.09.2022



                                   BEFORE
                    HON'BLE MR. JUSTICE MANISH CHOUDHURY
                                   JUDGMENT & ORDER [Oral]

The petitioner has instituted this writ petition under Article 226 of the Constitution of India seeking a number of directions from the respondent authorities, firstly, a direction to the respondent authorities to promote him as Inspector of Statistics as per the Final Gradation List of Sub-Inspector of Statistics, published by the Directorate of Economics and Statistics, Government of Assam, on 14.06.2017, secondly, to modify the Minutes of the Departmental Promotion Committee Meeting, held, on 02.03.2019, for the purpose of recommending candidates for promotion to the cadre of Inspector of Statistics from the cadre of Sub-Inspector of Statistics under Transformation and Development Department, Government of Assam, in so far as the petitioner is concerned, contending that non-

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consideration of the petitioner's case for promotion was against the statutory provisions of the Assam Services [Confidential Rolls] Rules, 1990 and the decision of the Hon'ble Supreme Court in Dev Dutt vs. Union of India and others , reported in [2008] 8 SCC 725; and thirdly, to promote the petitioner to the cadre of Inspector of Statistics and retain and restore his seniority position just above the employee who was immediate junior to the petitioner in the Final Gradation List, published on 14.06.2017.

2. The facts necessary for adjudication of the issues raised in this writ petition can be stated as follows :-

2.1. The petitioner came to be appointed in the post of Sub-Inspector of Statistics in the Directorate of Economics and Statistics, Government of Assam as a direct recruitee and his date of joining in the post of Sub-Inspector of Statistics was 02.03.2006. The cadre of Sub- Inspector of Statistics is a part of the Assam Economic and Statistical [Junior] Service Rules, 1980 and the matters of recruitment and conditions of services of the cadre are regulated by the Assam Economic and Statistical [Junior] Service Rules, 1980 ['the 1980 Rules', for short]. The 1980 Rules are rules framed in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India. There is another set of rules namely, the Assam Economic and Statistical Service Rules, 1973 ['the 1973 Rules', for short], which are also rules framed by the Government in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India. The 1973 Rules are framed for regulating the matters recruitment and conditions of services of persons appointed to the Assam Economic and Statistical Service Rules, 1973. As per Rule 3 of the 1973 Rules, the cadre of Inspector of Statistics is a part of the Assam Economic and Statistical Service. Rule 5 [7] has provided for recruitment to the post of Inspector of Statistics.

2.2. As per Rule 5 [7], the appointment to the post of Inspector of Statistics [Category VII] shall be made in the following manner :-

"[7] Inspector of Statistics -

Category VII. Appointment shall be made in the following manner : [a] by promotion against 70% of the vacancies from the select list prepared Page No. 4/11

for this purpose from amongst the Sub-Inspector of Statistics belonging to the Assam Economics and Statistical [Junior] Service who have rendered service for a continuous period of seven years as Sub-Inspector and have successfully undergone such training and have passed such departmental examination as may be prescribed by the Government for this purpose;

              [b]    by direct recruitment 25%;
              [c]    by selection from Upper Division Assistant 5%."

2.3. Rule 7 of the 1973 Rules has laid down the procedure for promotion. There shall be a Selection Committee for the purpose of preparing the selection lists and Rule 7 [1] has provided for the composition of the Selection Committee. It is laid down that the selection lists for different categories of posts shall be prepared separately and in every case where a junior member is selected in preference to his senior/seniors in the cadre, the reasons for such supersession shall be recorded by the Selection Committee in writing. The selection lists shall be prepared by the Selection Committee on the basis of merit and suitability in all respects with due regard to the seniority. The Selection Committee is required to select, from amongst the members of the particular cadre who are eligible for promotion under Rule 5, persons considered suitable for promotion to the higher post in order of preference.

Indicating the number of likely vacancies to be filled up by such promotion, the Government has to forward to the Selection Committee the Character Rolls and other relevant papers of all eligible members of that particular Service equal to four times the number of vacancies. The list of officers so selected shall not exceed twice the number of likely vacancies.

3. The Directorate of Economics and Statistics, Government of Assam published a Final Gradation List of Sub-Inspector of Statistics of the Directorate by an order dated 14.06.2017 containing the names of 159 nos. of Sub-Inspector of Statistics. In the Final Gradation List, the name of the petitioner figured at Serial no. 6 as a direct recruitee to the post of Sub- Inspector of Statistics.

4. A promotional exercise was undertaken by the respondent authorities for promotion to the cadre of Inspector of Statistics from the cadre of Sub-Inspector of Statistics under the Page No. 5/11

Transformation and Development Department, Government of Assam and the Departmental Promotion Committee [DPC] constituted for the purpose, held its meeting on 02.03.2019.

5. In the Minutes of the DPC, it is reflected that there were a total of 181 nos. of posts of Inspector of Statistics. Out of those, 70% were to be filled up by promotion form the cadre of Sub-Inspector of Statistics, 25% were to be filled up by direct recruitment and 5% were to be filled up by selection from Upper Divisional Assistants [UDAs]. The DPC had further recorded that at that point of time, the total vacant posts to be filled up by promotion from the cadre of Sub-Inspector of Statistics were 98. The Minutes of the DPC had further reflected that since 98 nos. of vacancies in the cadre of Inspector of Statistics were to be filled up from the cadre of the Sub-Inspector of Statistics, the zone of consideration should be four times of 98 nos. of vacancies, that is, 392. Since the cadre of Sub-Inspector of Statistics itself was having a strength of 127, the total nos. of eligible candidates found in the zone of consideration were only 88. The DPC had, thus, considered the cases of only those 88 nos. of eligible candidates. The DPC decided to spread the 98 nos. of vacancies over 5 [five] years period from 2015 to 2019. The DPC further decided to consider the cases year-wise and also to take at least 3 [three] ACRs graded as 'good' as benchmark for promotion.

6. For the year 2015, 7 nos. of vacancies were considered for promotion by the DPC. For the year 2016, the DPC was calculated the total vacancies as 8. The DPC considered 25 nos. of vacancies for the year 2017 and 5 vacancies for the year 2018. The DPC also took the vacancy position for the year 2019 as 53 nos. of vacancies.

7. It may be relevant to mention that out of the 6 [six] Sub-Inspector of Statistics whose positions were higher than the petitioner in the Final Gradation List dated 14.06.2017, the date of retirement of one Sri Keshab Chandra Das was 31.07.2018 and as a result of such

retirement, the seniority position of the petitioner in the Final Gradation List had become 5 th.

8. The DPC for the vacancies of the year 2015 considered the list of eligible candidates within the zone of consideration and in the said list of eligible candidates, the petitioner was declared not qualified to be considered for promotion on the ground that the petitioner had been graded as 'average' for 3 [three] years and 'good' only for 2 [two] years. The DPC for Page No. 6/11

the vacancies for the year 2015 recommended 4 [four] nos. of Sub-Inspector of Statistics, whose positions were above the petitioner in the Final Gradation List. The DPC also recommended one Sri Akhil Chandra Das belonging to the unreserved category and whose position was below the petitioner in the Final Gradation List. Another person viz. Sri Nitumoni Jigdung [the respondent no. 5] was also recommended for promotion for the vacancies for the year 2015, apart from one Sri Ramen Chandra Choudhury from the Scheduled Caste [SC] category.

8.1. As a result of the above recommendations for the year 2015, the position of the petitioner in the zone of consideration for the vacancies for the year 2016 had figured at serial no. 1. In the similar manner, for the vacancies for the subsequent years, that is, 2017, 2018 and 2019, the position of the petitioner figured at serial no. 1 in the zone of consideration. But for the vacancies for the years, 2016, 2017, 2018 and 2019 the DPC also did not recommend the name of the petitioner for promotion to the post of Inspector of Statistics for the same reason.

9. I have heard Mr. H.K. Das, learned counsel for the petitioner; Mr. T.C. Chutia, learned Additional Senior Government Advocate, Assam for the respondent nos. 1-4; and Mr. P.K. Sharma, learned counsel for the respondent no. 5.

10. Mr. Das, learned counsel for the petitioner has submitted that the petitioner was deprived from the benefit of promotion solely on the ground that in the Annual Confidential Reports [ACR] for the five previous years, there were only two 'good' entries against 'average' entries for the remaining three years. The prime contention raised by him is that the entries of 'average' for three years were never communicated to the petitioner at any point of time prior to the date of the DPC meeting. He has submitted that in considering of the case of the petitioner for promotion, the provisions of the Assam Services [Confidential Rolls] Rules, 1990, including Rule 10 thereto have been violated. As a result, the petitioner was deprived of the opportunity of making any representation against the adverse remarks in the ACR. Mr. Das has submitted that the petitioner has an apprehension that on 17.04.2013, the respondent no. 4 who was the Reporting Authority for the petitioner, had served a letter to the petitioner with a number of allegations and directed the petitioner to explain reasons Page No. 7/11

within 7 [seven] days from the date of receipt of the letter as to why disciplinary action should not be taken against the petitioner for gross negligence of official duties and responsibilities as a Sub-Inspector of Statistics. The petitioner in response to the letter dated 17.04.2013 had immediately submitted his explanation on 23.04.2013. After submission of the explanation by the petitioner, the matter rested at that stage without any further action from the end of the respondent authorities resulting any disciplinary proceeding against the petitioner. As such, the letter dated 17.04.2013 could not have been made a basis for the adverse remarks in the ACRs of the petitioner.

11. Mr. Chutia, learned Additional Senior Government Advocate, Assam has submitted that the DPC followed the proper procedure in recommending the names of the candidates for promotion to the cadre of Inspector of Statistics from the cadre of Sub-Inspector of Statistics and in view of 'average' entries in the ACRs for three years in case of the petitioner, his case could not be considered for promotion as the benchmark for promotion was at least three ACRs with 'good' grading. From the communication of the Reporting Authority dated 21.12.2020, it transpires that the petitioner did not show keen interest in the normal office duties. The Reporting Authority had, therefore, in his subsequent report had remarked that if the authority desired then the 'average' gradings might be considered as 'above average'.

12. It is submitted by Mr. Sharma, learned counsel for the respondent no. 5 that the respondent no. 5 was promoted on the basis of the gradings in the ACR and the respondent no. 5, for the vacancies for the year 2015, was within the prescribed zone of consideration. It is his further submission that the recommendation of the respondent no. 5 was on the basis of merit and suitability in all aspects with due regard to seniority. By making in challenge through this writ petition, the position of seniority attained by the respondent no. 5 as far back as in the year 2019 should not be disturbed.

13. I have given due consideration to the submissions of the learned counsel for the parties and also perused the materials brought on record by the parties though their pleadings.

14. The factual matrix of the case has already been narrated above. As regards the Page No. 8/11

contention that the petitioner was never communicated the adverse gradings in the form of 'average' for three years, the said position has been admitted by the respondent nos. 1 & 2 in paragraph 11 of their affidavit-in-opposition. It is stated therein that no adverse entries/remarks were found in the ACRs of the petitioner. However, his overall grading in his ACRs for the three consecutive years : 2013-2014, 2014-2015 and 2015-2016 were 'average' and the petitioner was not communicated in that connection. Thus, the stand that has been taken on behalf the State respondents is that the grading of 'average' cannot be considered to be an adverse entry/remark in the ACRs report of the petitioner.

15. The petitioner is a Government employee. If the employer wants to initiate any action for any form of misconduct on the part of a Government employee then the employer has to proceed against such employee under the provisions of the Assam Services [Discipline and Appeal] Rules, 1964 ['the 1964 Rules', for short] by serving a notice to show cause under Rule 9 of the 1964 Rules. After serving the letter dated 17.04.2013 upon the petitioner asking him to explain reasons as to why disciplinary action should not be taken against the petitioner and after receipt of the explanation from the petitioner on 23.04.2013, no disciplinary action under the provisions of the 1964 Rules was found to have been taken against the petitioner thereafter. It is settled position of law that it is only when a charge-memo in a disciplinary proceedings is issued to the employee it can be said that the disciplinary action is initiated against the employee. Since no departmental proceeding under the 1964 Rules is found to have been initiated against the petitioner, the service of the letter alleging gross negligence of official duties and responsibilities cannot form the basis of any adverse remark in the ACRs of the petitioner.

16. As per Rule 2[1] of the Assam Services [Confidential Rolls] Rules, 1990 ['the 1990 Rules', for short], 'Accepting Authority' means the authority who was, during the period for which the Confidential Report is written, immediately superior to the Reviewing Authority and such other authority as may be specifically empowered in this behalf by the Government. As per Rule 2 [f], 'Reporting Authority' means the authority who was, during the period for which the Confidential Report is written, immediately superior to the employee and such other authority as may be specifically empowered in this behalf by the Government. As per Page No. 9/11

Rule 2 [g], 'Reviewing Authority' means the authority who was, during the period for which the Confidential Report is written, immediately superior to the Reporting Authority and such other authority as may be specifically empowered in this behalf by the Government.

17. The 1990 Rules had laid down procedure of writing Confidential Reports, review of the Confidential Reports, and acceptance of the Confidential Reports. Rule 10 thereof has provided of communication to adverse remarks. It is laid down that where a Confidential Report of an employee contains an adverse or critical remark, it shall be communicated to him by the Reviewing Officer in writing together with a substance of entire Confidential Report ordinarily within the stipulated time line mentioned therein. Rule 11 of the 1990 Rules has given a right to the employee to make a representation against adverse remarks. Rule 12 of the 1990 Rules has provided about the manner how such a representation of an employee against adverse remarks is to be considered.

18. In Dev Dutt vs. Union of India and others , reported in [2008] 8 SCC 725, the Hon'ble Supreme Court of India has held that every entry [and not merely a poor or adverse entry] relating to an employee under the State or an instrumentality of the State, whether in civil, judicial, police or other service [except the military] must be communicated to him, within a reasonable period, and it makes no difference whether there is a benchmark or not. Even if there is no benchmark, non-communication of an entry may adversely affect the employee's chances of promotion [or getting some other benefit], because when comparative merit is being considered for promotion [or some other benefit] a person having a 'good' or 'average' or 'fair' entry certainly has less chances of being selected than a person having a 'very good' or 'outstanding' entry.

18.1. The Hon'ble Supreme Court in Dev Dutt [supra] has also cited an example. If the benchmark is that an incumbent must have 'very good' entries in the last five years, then if he has 'very good' [or even 'outstanding'] entries for four years, a 'good' entry for only one year may yet make him ineligible for promotion. This 'good' entry may be due to the personal pique of his superior, or because the superior asked him to do something wrong which the incumbent refused, or because the incumbent refused to do sycophancy of his superior, or because of caste or communal prejudice, or for some other extraneous consideration.

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18.2. It has been observed that non-communication of entries in the ACR 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 prayer for its upgradation. It has thus been held that non-communication of an entry is arbitrary and arbitrariness violates Article 14 of the Constitution of India. Communication of entries and giving opportunity to represent against them is important as even a single entry can destroy a career of an officer resulting in grave injustice and heart-burning, and may shatter the morale of an employee, who is superseded due to such arbitrariness in the non-communication and denial of the opportunity to make representation.

19. The said position has also been reiterated in the subsequent decisions in 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. From the afore-stated decisions, it has emerged as a settled position of law with that though a person has no fundamental right of promotion in terms of Article 16 of the Constitution of India, but he has a fundamental right to be considered for promotion. The terms and conditions of service of an employee including his rights to be considered for promotion are governed and regulated by rules farmed under the proviso to Article 309 of the Constitution of India.

20. It has clearly emerged as an undisputed fact that the petitioner was never communicated with the entries of the 'average' gradings given to him in the Annual Confidential Reports [ACRs] during the years : 2013-2014, 2014-2015 and 2015-2016. The same is clearly an unfair act on the part of the respondent authorities and the same have violated the principles of natural justice. This Court is of the unhesitant view that the petitioner should have been communicated with the entries in the ARCs for those years so that he could have an opportunity of making a representation for upgrading the same so that he could be eligible for promotion by meeting the benchmarks laid down for promotion from the cadre of Sub-Inspector of Statistics to the cadre of Inspector of Statistics.

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21. In view of the discussions made above and for the reasons assigned therein, it is directed that the entries/gradings made in the Annual Confidential Reports [ACRs] of the petitioner for the years which were taken into consideration by the Departmental Promotion Committee [DPC] in its Meeting held on 02.03.2019 for considering the case of the petitioner for promotion to the cadre of Inspector of Statistics from the cadre of Sub-Inspector of Statistics under the Training and Development Department should be communicated to the petitioner within a period of 1 [one] month from the date of receipt of a copy of this order. On being so communicated, the petitioner may make the representation, if so chooses, against those entries within 1 [one] month thereafter and the said representation should be decided by the Competent Authority in the manner provided under Rule 12 of the 1990 Rules within a period of 2 [two] months thereafter. If the entries in the Annual Confidence Reports [ACRs] are upgraded, the petitioner shall be considered for promotion retrospectively by the Departmental Promotion Committee [DPC] within 3 [three] months thereafter, and if the petitioner gets selected for promotion retrospectively, he would be entitled to all consequential benefits on the principle of next below rule. For the purpose of clarity, it is observed that the exercise shall be carried out with deference to the date on which his junior in service came to be promoted.

22. With the observations made and directions given above, this writ petition stands allowed to the extent indicated above. There shall, however, be no order as to cost.

JUDGE

Comparing Assistant