Manipur High Court
Shri Khumanthem Dilip Singh vs The State Of Manipur on 27 October, 2021
JOHN Digitally signed
by JOHN TELEN
KOM
TELEN Date:
2021.10.29
KOM 16:16:07
+05'30'
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
WP(C) No.527 of 2020
Shri Khumanthem Dilip Singh, aged about 58 years old, s/o Late Kh.
Chandramohon Singh, resident of Sagolband Nepra Major Leikai, PO & PS
Imphal, and District Imphal West, Manipur-795001.
...Petitioner
- Versus -
1. The State of Manipur, through the Commissioner(Commerce &
Industries),Govt. of Manipur Imphal, Pin-795001.
2. The Manipur Public Service Commission through its Secretary, MPSC,
Imphal, Manipur, Pin-795001.
3. Shri Sh. Ibotombi Sharma, aged about 59 years, Lairenhanjaba Leikai,
PO & PS Lamphel and District Imphal West, Manipur-795004.
...Respondents
BEFORE
HON'BLE MR. JUSTICE M.V. MURALIDARAN
For the Petitioner : Mr M. Devananda, Advocate,
For the Respondents : S. Nepolean GA for respondent No.1,
Mr.R.S Reisang for respondent No.2
Mr. H.S. Paonam for respondent No.3.
Date of hearing : 27.09.2021
Date of Judgment & Order : 27.10.2021.
JUDGMENT & ORDER
(CAV)
[1] This writ petition has been filed by the petitioner seeking a writ of
Certiorari mandamus to set aside the order dated 05.8.2020 passed by the first
respondent and to direct the respondents to consider the representation of the
petitioner dated 21.2.2019 in accordance with law afresh and to hold a fresh
review DPC for promotion to the post of Joint Director (G&M) in the Department
of Textile, Commerce & Industry, Government of Manipur.
[2] Heard the learned counsel for the petitioner; the learned
Government Advocate for the first respondent and the learned counsel for the
second respondent - Manipur Public Service Commission.
[3] Assailing the impugned order, the learned counsel for the
petitioner submitted that earlier the petitioner questioned the legality and
correctness of the proceedings of the Departmental Promotion Committee
(DPC) meeting held on 28.12.2013 and also sought quashing of the order dated
01.2.2014 issued by the Deputy Secretary to the State Government and by the
order dated 14.2.2017, the said writ petition was allowed by the learned Single
Judge and consequently, the proceedings of the DPC meeting held on
28.12.2013 and the order dated 01.2.2014 appointing the private respondent
mentioned therein on promotion to the post of Joint Director of Industries (G &
M) are quashed. He would submit that aggrieved by the order of the learned
Single Judge, the State preferred W.A.No.23 of 2017 and the private
respondent Ibotombi Sharma preferred W.A.No.24 of 2017 and by the common
judgment dated 18.12.2018, the Division Bench of this Court allowed both the
appeals and directed the State Government to communicate the ACR entry of
the writ petitioner within a period of one month from the date of receipt of a copy
of the order and thereafter, the writ petitioner is at liberty to make a
representation, if he so chooses, against such entry within one month after the
receipt of the ACR copy. In the said judgment it was also directed the State
Government to decide the representation of the petitioner within two months
from the date of receipt of the representation. The Hon'ble Division Bench
further observed that if the representation is accepted and entry is upgraded,
the writ petitioner's claim will be considered in a review DPC.
[4] The learned counsel for the petitioner further submitted that
pursuant to the judgment of the Division Bench, the petitioner submitted a
representation after receiving the ACR copy on 21.2.2019 requesting the
authority to correct the wrong entry made in the ACR for the years 2006-07,
2007-08 and 2008-09 respectively and upgrade the ACRs for the aforesaid
period to the outstanding level and to hold a review DPC to consider his case
for promotion to the post of Joint Director (G & M) in the Commerce and
Industries Department.
[5] The learned counsel then submitted that despite the direction of
the Division Bench of this Court, the first respondent State has failed to consider
the case of the petitioner in proper perspective and issued the impugned order
dated 5.8.2020, thereby rejecting the claim of the petitioner. According to the
learned counsel for the petitioner, the representation of the petitioner was
rejected without giving any justifiable reasons and without taking into
consideration the resolution of the Meeting held on 12.6.2019 and 14.10.2019
respectively.
[6] ` The learned counsel next submitted that as per the DoPT
guidelines the grading for promotion to Class I post bench mark is "very good"
and not as "good". Therefore, the ACRs grading to the petitioner for the period
2007-08 and 2008-09 is an adverse remarks and that the order impugned is
illegal and arbitrary. Moreover, a bare perusal of the impugned order, it is clear
that no contact of the then reporting, reviewing and accepting officers and
instead of making any attempt to contact the aforesaid officials, the first
respondent has passed the impugned order saying that it may not be possible
to contact the officials. According to the learned counsel, such decision of the
first respondent is highly illegal and therefore, the same is liable to be set aside.
[7] Countering the arguments of the learned counsel for the
petitioner, Mr. S. Nepolean, the learned Government Advocate appearing for
the first respondent State submitted that only after examination of the merits,
behavior and performance of duties held by the incumbents by the concerned
authorities of the Department, writings were made in the ACRs and in the case
of the petitioner, the competent authority, after consideration of the
representation made by him and after examination of the ACRs for the
concerned period, issued the impugned order by rejecting the claim of the
petitioner.
[8] The learned Government Advocate further submitted that the
petitioner cannot dictate the authority to consider and dispose of the
representation in his favour and that the allegations made in the writ petition
are not sustainable in the eye of law.
[9] Mr. R.S. Reisang, the learned senior counsel for the Manipur
Public Service Commission submitted that the Manipur Public Service
Commission received proposal from the Deputy Secretary in Form-6 for filling
up of one vacant post of Joint Director of Industry (G & M) in Commerce and
Industry Department, Manipur by promotion on regular basis and that in the
seniority list two eligible officers namely the petitioner and the third respondent
was submitted by the Department. Thereafter, DPC was held on 28.12.2013 at
Manipur Public Service Commission in connection with the said appointment
and after careful consideration of the integrity certificate and assessment of
overall ACRs gradings of the last five years of the two officers in the zone of
consideration, recommended the third respondent for appointment by
promotion to the post of Joint Director. He would submit that the authority after
examination of the ACRs for the concerned period, issued the impugned order
rejecting the claim of the petitioner.
[10] The learned senior counsel for the Public Service Commission
then submitted that the post of Additional Director (G & M) has already been
filled up vide order dated 27.2.2021, subject to the final outcome in the instant
writ petition.
[11] This Court considered the submission made by learned counsel
for the petitioner and the learned Government Advocate appearing for the first
respondent and the counsel for Manipur Public Service Commission and also
perused the materials available on record.
[12] The grievance of the petitioner is that since he was not previously
communicated about the entries made in the ACRs, the same ought not to have
been made the basis for consideration of promotion and the proceedings of the
DPC being arbitrary and illegal. It is also the say of the petitioner that when the
petitioner filed W.P.(C) No.328 of 2014 for quashing the proceedings of the
DPC meeting held on 25.12.2013 for promotion to the post of Joint Director (G
& M), including the promotion order of the private respondent to the post of Joint
Director (G & M), the said writ petition was allowed by this Court on 14.12.2017
whereby the proceedings of the DPC and the promotion order of the private
respondent were quashed. Assailing the said quashing order of the learned
Single Judge, both the State and the private respondent preferred appeals and
by the judgment dated 18.12.2018, the writ appeals were allowed by the
Hon'ble Division Bench thereby setting aside the order of the learned Single
Judge with liberty to the petitioner to submit a representation to the Government
to upgrade his ACR. In the said judgment, the Government was directed to
communicate the ACRs which were used by the DPC and to consider the
representation of the petitioner in a time bound manner. In the said judgment,
it has also been observed that if the representation is accepted and ACR of the
petitioner is upgraded, a review DPC shall be held within three months after the
claim of the petitioner is considered. Pursuant to the directions, the petitioner
submitted a representation and by the impugned order, the representation of
the petitioner was rejected by the first respondent on 5.8.2020.
[13] The contention of the petitioner is that the representation of the
petitioner was rejected without giving any justifiable reasons and the first
respondent without taking into consideration the resolution of the meeting dated
12.6.2019 and 14.10.2019 respectively, issued the rejection order on the
ground that the period of ACRs which are to be decided for upgradation are for
the years 2006-07, 2007-08 and 2008-09 whose grading are "very good",
"good" respectively and ACR grading "good" and "very good" are not adverse
remarks.
[14] It is the further contention of the petitioner that the representation
cannot be disposed of without applying the mind and without assessing the self
appraisal report submitted to the reporting officer. According to the learned
counsel, as per the DoPT guidelines the grading for promotion to Class I post
bench mark is "very good" and not as "good". Therefore, the impugned order
dated 5.8.2020 is illegal and arbitrary.
[15] The petitioner was initially appointed to the post of Geologist on
regular basis on the recommendation of the Manipur Public Service
Commission on 24.5.1986 and on 23.11.2012, the Principal Secretary (Com. &
Ind.) issued a notification publishing the final seniority list of Geologist, wherein
the name of the petitioner appeared at Serial No.1 and that the third respondent
name appeared at Serial No.2. On 15.9.1979, the Under Secretary of the
Department issued a notification notifying the Recruitment Rules for the post of
Joint Director of Industries (Geology) and on 27.12.2013, the Deputy Secretary
issued a notification stating that a meeting of a DPC would be held on
28.12.2013 to consider the eligible persons for appointment on promotion to
the post of Joint Director (G & M) in the Department of Commerce and
Industries.
[16] Suspecting some foul play in the proceedings of the DPC, the
petitioner submitted RTI application seeking information. On the
recommendation of the DPC, by the order dated 1.2.2014, the private
respondent was appointed on promotion to the post of Joint Director of
Industries and after the appointment made, the Additional Secretary, MPSC
furnished a copy of the proceedings of the DPC meeting held on 14.2.2014 and
in respect of the ACRs, the Deputy Secretary informed the Director on
13.3.2014 that copies of the ACRs need not be furnished to the petitioner. As
the concerned authorities failed to furnish the information as regards the
grading of the ACRs from the official respondents and being aggrieved by the
inaction on the part of the respondent authorities, the petitioner filed W.P.(C)
No.328 of 2014. By the order dated 14.2.2017, the learned Single Judge
allowed the writ petition. It would be appropriate to extract paragraphs 7 and 8
of the order of the learned Single Judge, which read thus:
"7. In Dev Dutt case, the grievance of the appellant was that
he was not communicated the "good" entry for the year 1993-
1994 and had he been informed about it, he would have got
the opportunity of making a representation. Having not done
so, the rules of natural justice have been violated. The Hon'ble
Supreme Court examined all aspects as regards the entry in
the ACR namely the concept of adverse entry; the
requirement of communication of entry and the effect of non-
communication of entry. With respect to concept of adverse
entry, what is relevant is not the nomenclature like fair, good,
very good etc., but it is the effect which the entry is having,
determines whether it is an adverse entry or not. It is the rigour
of the entry which is important and not the phraseology. The
grant of a "good" entry is of no satisfaction to the incumbent if
it in fact makes him ineligible for promotion or has an adverse
effect on his chances. The reason as to why the entry in the
ACR is to be communicated, is to give an opportunity to the
employee of making a representation if he is aggrieved by it.
Non-communication of entry is violation of the principle of
fairness which is the soul of natural justice and arbitrariness
violates Article 14 of the Constitution. The Hon'ble Supreme
Court went ahead further by observing that even the O.M, if
interpreted to mean that only adverse entries are to be
communicated to the employee concerned and no other
entries, would become arbitrary and hence, illegal. All similar
rules/ Government orders/office memoranda, in respect of all
services under the State, whether civil, judicial, police or other
service (except the military) will hence be illegal and are to be
ignored. In the instant case also, the grievance of the
petitioners is that since the entry in his ACRs is not
communicated to him, the proceedings of the DPC based on
the said un-communicated ACRs are arbitrary, to which the
stand of the respondents is that the entry in the ACRs not
being adverse to the petitioner, the same is not required to be
communicated to him. Therefore, the contention of the
respondents that the law laid down in Dev Dutt case will not
apply to the facts of the case, has no substance and is
accordingly not acceptable to this court. Admittedly, the
petitioner is senior to the private respondent but because of
the fact that the petitioner was given an overall grading of "very
good", he was held ineligible and the private respondent was
given promotion. Out of five years, the petitioner was given a
grading of "outstanding" in respect of the last two years and in
respect of the 2nd and 3rd years, the grading given was only
"good" and had the entry in respect of 2nd year been
communicated to the petitioner, he would have got the
opportunity to make a representation or would have improved
himself in the 3rd year. Since the petitioner was not
communicated the entries in respect of the first three years,
he did not get the opportunity to make a representation and
therefore, the inaction on the part of the authorities was
arbitrary being violative of Article 14 of the Constitution and
the un-communicated entries would not have been made the
foundation for consideration of promotion. Having heard the
learned counsels appearing for the parties, this court is of the
view that the issue involved herein is squarely covered by the
decision rendered in Dev Dutt case and affirmed in Sukhdev
Singh case with the result that the proceedings of the DPC
and the order dated 01-02-2014 issued in consequence
thereof, are not sustainable in law.
8. For the reasons stated herein above, the instant writ petition
is allowed and consequently, the proceedings of the DPC
meeting held on 28-12-2013 and the order dated 01-02-2014
issued by the Deputy Secretary appointing the private
respondent on promotion to the post of Joint Director of
Industries (G & M) are quashed and set aside. There shall be
no order as to costs."
[17] Aggrieved by the said order of the learned Single Judge, the State
has preferred W.A.No.23 of 2017 and the third respondent has preferred
W.A.No.24 of 2017. By the common judgment dated 18.12.2018, both the
appeals were allowed, thereby directing the petitioner herein to submit a
representation to the Government. The operative portion of the judgment reads
thus:
"In view of the above legal position, the order of the learned Single
Judge quashing the DPC proceedings and promotion of the appellant
in WA No.24 of 2017 is set aside. In so far as non-communication of
the ACRs entry and resultant non consideration of respondents claim
in DPC proceedings requires modification in the light of judgment of
the Hon'ble Supreme Court in the above cited cases. The appeals
stand partially allowed as above in the light of the direction given in
para No.44 in Dev Dutt's case and para No.10 of Sukhdev Singh's
cases.
In this case following the dicta of the Hon'ble Supreme Court, the
State is directed to communicate the ACR entry of the respondent/writ
petitioner witin a period of one month from the date of receipt of this
order. Thereafter, the respondent/ writ petitioner is at liberty to make
a representation, if he so chooses, against such entry within one
month after receipt of the ACR entry. The representation, if any, will
be decided by the Government within two months from the date of
receipt of such representation. If the representation is accepted and
entry is upgraded, the respondent/writ petitioner claim will be
considered in a review DPC, which shall be completed within three
months after the claim has been considered favourably. Interim order
passed in this appeal to continue till the issue is finally concluded by
the official respondent on the time line as indicate above.
Both the appeals stand allowed accordingly."
[18] It appears that in compliance with the directions issued by the
Division Bench of this Court, the Deputy Secretary to the Government
addressed a letter dated 2.2.2019 to the Director (Trade, Commerce and
Industry) enclosing true certified copies of ACRs for the period 2006-07, 2007-
08 and 2008-09 in respect of the petitioner which were placed before the DPC
held on 28.12.2013.
[19] On a perusal of the assessment, it is seen that for the year 2007-
08, the Reporting Officer has stated the grading of the petitioner as under:
"Grading:- He can be graded as "Good" on the whole in
consideration of the forgoing observations."
In the remarks, the Reviewing Officer graded as under:
"Graded as "Very Good" as in the forgoing assessment"
[20] Similarly, for the year 2008-09, the Reporting Officer has stated
the grading of the petitioner as under:
"Grading:- He may be graded as "Good" based on the forgoing
observations."
In the remarks of the Reviewing Officer, it has stated as under:
"Graded as "Good" as in the forgoing assessment."
[21] For the year 2009-10, the assessment of the Reporting Officer is
as under:
"Grading:- "Outstanding"
The remarks of the Reviewing Officer is as under:
"Graded as "Good" as in the forgoing assessment."
[22] On a further perusal of the records, it is seen that for the year
2010-11, the grading of the Reporting Officer is "Outstanding" and the remarks
of the Reviewing Officer is "Grading is accepted". For the years 2018-19 and
2019-20, the assessment of the Reporting Officer is "He bears a good
personality" and the remarks of the Reviewing Officer is "I rote the officer as
Outstanding".
[23] Pursuant to the direction in the writ appeals, on 21.2.2019, the
petitioner submitted a representation to the Principal Secretary, Textiles,
Commerce and Industry Department to take up necessary steps to
rectify/correct the wrong entry in his ACRs for the years 2006-07, 2007-08,
2008-09 and to upgrade the ACRs for the aforesaid period to the outstanding
level and hold a review DPC to consider his case.
[24] It appears that upon receipt of the representation from the
petitioner, meeting of the Committee to examine the representation was held
on 15.3.2019 in compliance with the judgment dated 18.12.2018 and in the
resolution of the meeting the issues discussed and the deliberations and
discussions were mentioned. In the said meeting, it has been decided to
approach the High Court to get clarification of certain points. Thereafter, on
22.4.2019, the Director addressed a letter to the Additional Government
Advocate to get the judgment dated 18.12.2018 passed in W.A.Nos.23 and 24
of 2017 clarified. In response to the same, on 24.5.2019, the State Government
counsel addressed a letter to the Director (Trade, Commerce and Industries)
stating as under:
"Thus, in my opinion, the only procedure to be followed while
disposing the representation, even if, the entry in the ACR is
not related to adverse entry, is the procedure quoted above
and as such, the Principal Secretary, Trade, Commerce &
Industries is the competent authority to consider and dispose
of the representation submitted by the Shri Kh.Dilip Singh.
With reference to the non-availability of the
documents/records in the ACR, I am of the opinion that the
competent authority has to examine and consider the
representation on the basis of the material available on record.
Further, with regard to the issue relating to the
recommendation of major penalty against the junior officer, it
may be pointed out that the said issue was also raised by Shri
Kh. Dilip Singh before the Single Bench as well as Division
Bench of the Hon'ble High Court of Manipur. However, the
Hon'ble Court has not granted any relief on the issue and as
such, the same cannot be now reopened by the Department,
In other words, as per the direction of the Hon'ble Division
Bench, the only issue to be decided by the Department is as
to whether the entry in the ACR of Shri Kh. Dilip Singh should
be upgraded or not on the basis of the material available on
record.
Now, in view of the above, the Department of Trade,
Commerce & Industries may now examine and consider the
representation submitted by Shri Kh. Dilip Singh and issue a
speaking order. If the Department is not satisfied with my
opinion as stated above, the advice of the Ld. Advocate
General, Manipur may kindly be obtained so that the
representation as directed by the Hon'ble Division Bench may
be disposed of at the earliest."
[25] Thereafter, on 7.6.2019, a notice was issued re-scheduling the
meeting on 12.6.2019 at 4.00 p.m. Accordingly, on 12.6.2019, the meeting was
held, wherein it was decided to call the then Reporting Officer for consultation
and establish the reasons for the ACRs grading given to the petitioner before
taking any decision. On 11.10.2019, again a meeting notice was issued
scheduling the meeting on 14.10.2019 and on 14.10.2019 the meeting was
held. In paragraph 5 of the resolution of meeting, it has been stated as under:
"5. After a detailed discussion, the members decided that the
Director (Trade, Commerce & Industries) and Deputy
Secretary (TC&I), Govt. of Manipur shall hold minute
discussions with Department of Personnel and suggest
options which may be adopted by the Government including
exploring the possibility of creation of supernumerary post(s)
to meet the requirements arising out of the Hon'ble High
Court's orders, which may be purely for the specific purpose
of implementing the orders of the Hon'ble High Court in the
abovementioned cases and shall stand automatically
abolished on the retirements/vacation of the proposed
supernumerary post(s. it was also highlighted that the
concerned officers are to retire on superannuation in
February, 2021 and January, 2022 respectively which means
the proposed supernumerary post(s)may be considered for
creation for the period of a couple of years only. Director
(Trade, Commerce & Industries) may submit concrete
proposals for consideration of the Government and the
Cabinet if required, as per the outcome of the above
discussions/consultations."
[26] Thereafter, on 5.8.2020, the impugned order came to be passed
by the first respondent. On a perusal of the impugned order, it is seen that the
order discussed the events that have commenced from the beginning and
finally, the first respondent observed as under:
"19. Taking into consideration the above facts and
circumstances, the Governor of Manipur is pleased to decide
that the petition/representation of Shri Kh. Dilip Singh has
been duly considered by the Department and rejected
henceforth subject to any decision that may be taken by the
State Cabinet.
20. The Director of Trade, Commerce and Industries, Manipur
is advised to take necessary corrective measures and ensure
due diligence in matters related to personnel in order to avoid
such cases in future."
[27] It is submitted by the learned Government counsel appearing for
the first respondent that the said proposal was not accepted by the State
Cabinet.
[28] It appears that the Government constituted a Committee
consisting of the Principal Secretary (Trade, Commerce and Industries), the
Secretary (Law), the Director (Trade, Commerce and Industries) and
representatives of the Department of Personnel to examine the representation
of the petitioner dated 21.2.2019. In fact, the Committee met several times and
also the authorities concerned obtained clarification from the State counsel in
respect of the consideration of the petitioner's representation. At one stage, in
the meeting held on 14.10.2019, it was considered to explore possibilities to
provide avenues to both the petitioner and the third respondent for promotion
either by way of modification of Recruitment Rules or one time relaxation of
Recruitment Rules or by way of creation of supernumerary post(s) to meet the
requirement arising out of the order of the Division Bench of this Court. In this
regard, the Department of Personnel and the Department of Finance were also
discussed. However, the Department of Personnel did not support the proposal
for creation of one supernumerary post each of Joint Director (Industries) and
Additional Director (Industries) as there is a ban on creation of posts in Manipur
State. Further, the Finance Department also did not support the creation of the
supernumerary post retrospectively for promotion. Since the Division Bench of
this Court directed the Government to decide on the representation submitted
by the petitioner within a period of two months and since the concerned
Reporting, Reviewing and Accepting Officers have retired and it may not be
possible to recall the basis of the decision taken and the period of ACRs to be
decided for upgradation are for the years 2006-07, 2007-08 and 2008-90 whose
grading are "very good" "good" and "good" respectively and opining that the
ACR grading "good" and "very good" are not adverse remarks, the Department
decided that a review DPC may not be necessary. Since there is no illegality
in the said decision taken by the Department, the non-holding of review DPC
will in no way help the case of the petitioner. Sufficient and justifiable ground
has been stated by the Department for non-holding of the review DPC.
[29] Since the issuance of the impugned order dated 5.8.2020, thereby
disposing the representation submitted by the petitioner was only after careful
examination and consideration of all the relevant materials available on record
as well as the provisions of the applicable rules, this Court finds no illegality or
irregularity in the impugned order.
[30] It is to be mentioned that the petitioner wants the authority to
consider and dispose of the representation in his favour. The petitioner cannot
dictate the authority to consider the representation in favour of the petitioner. It
is reiterated that there is no illegality and irregularity in the impugned order and
the impugned order has been passed in accordance with the directions issued
by the Division Bench of this Court in W.A.Nos.23 and 24 of 201, dated
18.12.2018 and also in accordance with the applicable provisions of law.
[31] For the foregoing discussions this Court is of the view that there
is no merit in the claim of the petitioner and accordingly, the writ petition is liable
to be dismissed.
[32] In the result, the writ petition is dismissed. However, there will be
no order as to costs.
JUDGE
FR/NFR
John Kom
