The Union Of India & Ors. vs . Virender Baboria
2022 Latest Caselaw 573 Meg

Serial No.02      HIGH COURT OF MEGHALAYA
Regular List             AT SHILLONG

 WA No.15/2021 with
 MC (WA) No.6/2022
                                                Date of order: 10.10.2022
 The Union of India & ors.         Vs.             Virender Baboria
 Coram:
       Hon'ble Mr. Justice Sanjib Banerjee, Chief Justice
       Hon'ble Mr. Justice W. Diengdoh, Judge
 Appearance:
 For the Appellants   :      Dr. N. Mozika, DSGI with
                             Ms. K. Gurung, Adv
 For the Respondent :        Mr. R. Mazumdar, Adv with

Mr. H. Bezbarua, Adv

i) Whether approved for Yes reporting in Law journals etc.:

 ii)    Whether approved for publication           Yes/No
        in press:

JUDGMENT: (per the Hon'ble, the Chief Justice) (Oral)

The appeal arises out of the respondent's writ petition which has

been allowed by the order impugned dated March 13, 2020.

2. The appellant employer is particularly aggrieved by the reasons

indicated at paragraph 6 of the impugned order and what is submitted to

be the erroneous inference drawn from a document which appears at page

198 of the appeal papers.

3. The facts are not much in dispute. The writ petitioner joined the

Assam Rifles as a Medical Officer on January 1, 2004. Under the

Dynamic Assured Career Progression Scheme (DACP), every Medical

Officer was entitled to be promoted after completing four years in service,

subject to meeting the minimum requirements in the Annual Confidential

Reports. The relevant scheme also provided that a Medical Officer

promoted as a Senior Medical Officer would be entitled to be promoted

to Chief Medical Officer after completing five years in service as SMO,

again subject to meeting the benchmark requirements as to performance

recorded in the ACRs.

4. According to the appellants, the writ petitioner did not meet the

minimum standards to be promoted immediately after completion of four

years of service on January 1, 2008. Indeed, the appellants submit that

successive ACRs of the writ petitioner revealed less than adequate

performance or medical condition till the Departmental Promotion

Committee considered the writ petitioner's case in 2013.

5. By a notification issued on October 29, 2013 (though the date is

written in the document in hand, there is no dispute regarding the same),

the writ petitioner was granted promotion to the post of SMO but with

effect from October 1, 2008. In other words, the document of October 29,

2013 acknowledged that the writ petitioner was entitled to be promoted

with effect from January 1, 2008 which may not have been done

erroneously or otherwise and, as such, the benefit was afforded to the writ

petitioner from the date it became due as per the career progression

scheme.

6. Since the writ petitioner's initial promotion dated back to 2008,

his case for next promotion to the post of CMO was taken up for

consideration in 2015. At a DPC held on March 17, 2015, the writ

petitioner's name was recommended for promotion as CMO with effect

from January 1, 2013.

7. As is the usual practice, the entire set of recommendations was

forwarded to the Union Ministry of Home, under which Assam Rifles

functions. The Union Ministry objected by a letter of June 12, 2015,

pointing out that the writ petitioner had previously been erroneously

promoted with retrospective effect as the writ petitioner could only have

been promoted prospectively from the date of the recommendation of the

DPC which was October 29, 2013.

8. Pursuant to the receipt of the relevant letter from the Union

Ministry of Home, the employer purported to communicate to the writ

petitioner, by a notice dated July 17, 2015, that the writ petitioner's

promotion to the post of SMO would be taken to be October 29, 2013 and

not January 1, 2008, as indicated earlier.

9. In a sense, the relevant letter amounted to reducing the writ

petitioner in rank for the period January 1, 2008 to October 28, 2013 and

the employer rescinding its earlier decision without any reason and

without affording the writ petitioner any opportunity to contest the same.

It was in such circumstances that WP (C) No.232 of 2015 came to be

filed.

10. In course of the documents disclosed by the employer in the

proceedings under Article 226 of the Constitution, it came out that there

were adverse remarks in the writ petitioner's ACRs for several years up

to 2012, but the writ petitioner had not been made aware of such adverse

remarks, whether contemporaneously or at all. It is in such circumstances

that the matter took a completely different turn. Added to this, was the

disclosure of a document that appears at page 198 of the appeal papers

which reveals that the ACRs of the writ petitioner in his rank as SMO had

been conducted from 2009-10 and that he was assessed to have performed

well enough to be eligible to be considered for promotion to the post of

CMO in 2015 and granted the promotion with effect from January 1,

2013.

11. There was, no doubt, a serious anomaly. If the writ petitioner had

actually discharged the duties and functions as Medical Officer till

October 29, 2013 and was promoted as SMO only thereafter,

notwithstanding the retrospective promotion, the writ petitioner's

performance as SMO could not have been assessed prior to October 29,

2013. The document which appears at page 198 of the appeal papers was

made the basis of the impugned order and the Single Bench found that

the writ petitioner could not be, in effect, lowered in rank without the writ

petitioner being afforded an opportunity to contest the same.

12. It appears that a mistake was committed by the employer in not

communicating the adverse remarks in the writ petitioner's ACRs which

led to the writ petitioner not being promoted till 2013. However, since

the general rule is that an employee must be communicated an adverse

remark in his ACR to afford the concerned employee to make a

contemporaneous representation thereagainst, it appears that the

employer in this case rectified the mistake by promoting the writ

petitioner in the year 2013 but from the date of January 1, 2008 when the

promotion otherwise became due to the writ petitioner under the DACP

scheme. There is no doubt that the recommendations made pursuant to

the DPC conducted on October 29, 2013 were forwarded to the Union

Home Ministry and the recommendations were given effect to upon

receiving the approval of the Ministry.

13. It is apparent that the employer considered the writ petitioner to

have been in the promoted post of SMO with effect from January 1, 2008

for the writ petitioner's case for further promotion to the post of CMO to

be taken up for consideration in 2015. However, upon the

recommendations being forwarded to the Union, the mistake was

realised. But by such time, the mistake was incapable of correction.

Indeed, the writ petitioner has suffered nevertheless since the writ

petitioner ought to have been promoted to the post of CMO on or about

January 1, 2013 but was, in fact promoted to such post in 2018.

14. Since the writ petitioner makes no grievance as to the belated

promotion to the post of CMO, despite having good ground therefor, such

aspect of the matter cannot be taken into consideration. At the same time,

the mistake committed by the employer or the Union in 2013 by granting

retrospective promotion to the writ petitioner with effect from January 1,

2008 could not have been corrected in 2015.

15. The service jurisprudence in matters pertaining to public

employment that has indigenously developed in this country founded on

salutary principles of administrative law and the fundamental canons of

natural justice, requires adverse remarks in annual confidential reports to

be immediately communicated to the concerned employee. Upon receipt

of such communication, the employee may make a representation against

the same if he perceives the adverse remark to be unwarranted. The

representation is then considered by the employer and dealt with on

merits. Oftentimes, since a large number of ACRs are prepared by

individual officials, mistakes creep in. Further, since such ACRs are

generally prepared without reference to the concerned employee, certain

aspects which may or may not be relevant are taken into account to the

prejudice of the employee though there may not be any fault on the part

of the employee in such regard.

16. The jurisprudence that has now developed commands that in the

absence of the contemporaneous communication of an adverse remark to

the concerned employee, the impact of the adverse remark cannot be

foisted on the employee.

17. As a consequence, since it is the admitted position in this case that

the writ petitioner was not made aware of the adverse remarks in his

ACRs during the relevant time, the action of the employer in promoting

the writ petitioner with retrospective effect must necessarily be seen to

be the correction of the mistake on the part of the employer to withhold

promotion without justifiable cause. Even in 2013, if the adverse remarks

had been forwarded to the writ petitioner, the situation would not have

been altered since such communication would have been belated as the

promotion fell due on January 1, 2008.

18. Accordingly, for reasons quite distinct from those evident from

the judgment and order impugned dated March 13, 2020, the appeal is

dismissed and the writ petition is allowed by setting aside the notice dated

July 17, 2015 and leaving the parties to work out their remedies as a

consequence thereof.

19. The writ petitioner-respondent will also be entitled to costs

assessed at Rs.15,000/-.

20. MC (WA) No.6 of 2022 stands disposed of.

         (W. Diengdoh)                               (Sanjib Banerjee)
             Judge                                     Chief Justice


Meghalaya
10.10.2022
"Lam DR-PS"