Patna High Court
Gupteshwar Prasad vs The State Of Bihar And Anr on 16 January, 2024
Author: Anshuman
Bench: Anshuman
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.4882 of 2018
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Gupteshwar Prasad, Son of late Gopalji, Resident of Village - Dumraon, P.S.-
Dumraon, District - Buxar.
... ... Petitioner/s
Versus
1. The State Of Bihar through the Principal Secretary-Cum-Commissioner,
Commercial Taxes Department, Bihar, Patna
2. The Principal Secretary-Cum-Commissioner, Commercial Taxes
Department, Bihar, Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr.Abhinav Srivastava, Advocate
Mr. Arpit Anand, Advocate
Mr. Pushkar Bharadwaj, Advocate
Mr. Raushan, Advocate
For the State : Mr. Krishna, AC to SC-11
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CORAM: HONOURABLE MR. JUSTICE DR. ANSHUMAN
ORAL JUDGMENT
Date : 16-01-2024
Heard Mr. Abhinav Srivastava, learned counsel for the
petitioner and Mr. Krishna, learned counsel for the State.
2. Learned counsel for the petitioner submits that the
present writ petition has been filed for quashing of the order
dated 15.02.2018 contained in Memo No. 450 passed by the
Principal Secretary, Commercial Taxes Department, Bihar,
Patna by which the claim of the petitioner for being extended
the benefits of financial progression under the Modified Assured
Career Progression Scheme with effect from 18.07.2009 as also
grant of promotions in the rank of Deputy Commissioner, as
Patna High Court CWJC No.4882 of 2018 dt.16-01-2024
2/11
well as Joint Commissioner, Commercial Taxes with effect from
the dates persons junior to the petitioner, had been made the said
promotions has been rejected on the ground that petitioner's
marking in the annual confidential report was not as per the
benchmark prescribed for the said purpose by a letter dated
30.03.2011
bearing letter no.922 issued by the General
Administration Department of the State Government. Further
prayer has been made to grant the benefit of second financial
progression under the Modified Assured Career Progression
Scheme in favour of the petitioner upon completion of 20 years
of regular service in the year 2009. The petitioner has further
prayed for shifting the date of promotion granted to the
petitioner against the post of Deputy Commissioner,
Commercial Taxes with effect from 22.02.2012.
3. Learned counsel for the petitioner further submits
that the prayer has also been made for the grant of promotion
against the post of Joint Commissioner, Commercial Taxes with
effect from 04/06/2014, i.e. the date from which a number of
persons admittedly junior to the petitioner had been granted
promotion against the said post and the petitioner has been
denied the said promotion without there being any just and valid
reason. The petitioner has also prayed for a direction to the
Patna High Court CWJC No.4882 of 2018 dt.16-01-2024
respondent authorities to consider the case of the petitioner for
granting him promotion against the post of Additional
Commissioner, Commercial Taxes, Bihar, Patna after shifting
the dates of his promotion to the rank of Joint Commissioner,
Commercial Taxes as well as Deputy Commissioner,
Commercial Taxes.
4. Learned counsel for the petitioner further submits
that the petitioner joined service after completion of Bihar
Public Service Commission in the year 18.07.1989 on the post
of Commercial Taxes Officer. Subsequently, on the basis of his
performance and fulfillment of other requirements, the
petitioner was granted promotion against the post of Assistant
Commissioner, Commercial Taxes with effect from 11.05.2006.
Thereafter, while the petitioner was discharging his duties in the
capacity of Assistant Commissioner, Commercial Taxes, Patna
City East, by a letter dated 11.05.2009 issued by the concerned
authorities under the Commercial Taxes Department, the
petitioner was directed to submit his explanations with respect
to not achieving the target of revenue collection for the financial
year 2007-08, following the same, petitioner submitted his
explanations. Thereafter, vide notification dated 05.10.2009
issued by the Principal Secretary-cum-Commissioner,
Patna High Court CWJC No.4882 of 2018 dt.16-01-2024
Commercial Taxes Department, Bihar, Patna, punishment of
censure was inflicted upon the petitioner purportedly for the
allegations of his failure to achieve the target of revenue
collection during the financial year 2007-08 and dereliction of
duty.
5. Learned counsel further submits that against the
said punishment order dated 05.10.2009, the petitioner moved
before this Hon'ble Court by filing CWJC No. 292/2010 which
was disposed of vide order dated 26.08.2010 wherein the
notification dated 05.10.2009 inflicting the punishment of
censure upon the petitioner was set aside. Learned counsel for
the petitioner further submits that while the petitioner was
continuing in the capacity of the Deputy Commissioner,
Commercial Taxes, a Letter No. 922 dated 30.03.2011,
published by which the State of Bihar has decided to consider
the cases of its employees for granting promotion on the basis of
entries made into their Annual Confidential Report and the
benchmarks. Counsel further submits that the petitioner has
made several representations to the respondent authorities, but
the benefit of the Modified Assured Career Progression scheme
has not been granted to him. Learned counsel for the petitioner
further submits that the petitioner has filed another writ petition
Patna High Court CWJC No.4882 of 2018 dt.16-01-2024
bearing CWJC No. 786/2018 for the redressal of his grievances.
The said writ petition was disposed off vide order dated
16.01.2018 directing the Principal Secretary-cum-
Commissioner, Commercial Taxes Department, Bihar, Patna to
dispose of the representation to be filed by the petitioner within
a period of five weeks by a reasoned and speaking order. In
compliance with the said order, the petitioner submitted a
representation dated 23.01.2018 before the Principal Secretary-
cum-Commissioner, Commercial Taxes Department, Bihar,
Patna, and in the light of the said representation order has been
passed and communicated to the petitioner vide Memo No. 450
dated 15.02.2018 by which his claim for promotion and granting
benefit of second Modified Assured Career Progression Scheme,
has been rejected. Then, the petitioner preferred the present writ
petition.
6. Learned counsel for the petitioner has argued this
writ petition raising two points. The first point, he has raised
that the petitioner was entitled for the benefit of Modified
Assured Career Progression Scheme in the year 2009 itself and
particularly after 26.08.2010 when the order of punishment
imposing censure and dereliction of duty was quashed, by the
order dated 26.08.2010 passed by this Hon'ble Court in CWJC
Patna High Court CWJC No.4882 of 2018 dt.16-01-2024
No. 292/2010. From 26.08.2010 onwards, he became entitled
for the benefit of Modified Assured Career Progression which
has not been provided to the petitioner. Such entitlement of the
petitioner was due with effect from 2009 itself. The second
point on which the counsel for the petitioner has put emphasis
that from Letter No. 922 dated 30.03.2011, the Government has
decided to grant promotion to its employees on the basis of
entries made into their annual confidential reports. But. in this
regard, counsel for the petitioner relied on paragraph 17 of the
judgment rendered in the case of Dev Dutt Vs. Union of India
& Ors. reported in (2008) 8 Supreme Court Cases 725 and
paragraph no.3 of the judgment rendered in the case
of Rukhsana Shaheen Khan Vs. Union of India and
Ors. Reported in (2018) 18 SCC 640 wherein it has been held
that uncommunicated adverse ACRs cannot be relied upon for
consideration of promotion. Counsel further submits that from
the impugned order, it is clear that the claim of the petitioner has
been rejected on the ground that the entries in the ACRs are not
up to the benchmarks. It is the specific pleading of the petitioner
that prior to the order dated 15.02.2018, the respondent
authorities had never communicated about any entry like 'not up
to the benchmarks' in his ACR. As such, in the light of these two
Patna High Court CWJC No.4882 of 2018 dt.16-01-2024
judgments mentioned above, the order passed by the Principal
Secretary, Commercial Taxes Department, Bihar, Patna which is
impugned in the writ petition may be set aside and direction
may be given to the authority concerned to pass order afresh in
compliance of the above two decisions of the Hon'ble Supreme
Court.
7. Learned counsel for the State on the other hand
submits that from the pleadings, it transpires that the below
benchmark entries in the ACR had not communicated to the
petitioner on any occasion prior to passing of the final order
which is impugned. Therefore, the petitioner may be directed to
file a fresh representation before the authorities against the said
entry 'below benchmark' in his ACR, and the authorities
concerned be permitted to pass a fresh order in the light of the
decision made by the Hon'ble Supreme Court mentioned above.
8. In light of the submissions made above by the
parties and for complete adjudication of the matter, it is
necessary to quote paragraph 17 of the judgment rendered in the
case of Dev Dutt Vs. Union of India & Ors. reported in (2008)
8 Supreme Court Cases 725, as under:-
"17. In our opinion, every entry in the
ACR of a public servant must be communicated
Patna High Court CWJC No.4882 of 2018 dt.16-01-2024
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. Hence,
non-communication of an entry is arbitrary, and
it has been held by the Constitution Bench
decision of this Court in Maneka Gandhi v.
Union of India [(1978) 1 SCC 248 : AIR 1978
SC 597] that arbitrariness violates Article 14 of
the Constitution."
Similarly paragraph no.3 of the judgment rendered in
the case of Rukhsana Shaheen Khan Vs. Union of India and
Ors. Reported in (2018) 18 SCC 640, is quoted as under :-
"3. This appeal is, accordingly, allowed
and the impugned judgment is set aside with the
following directions:
(a) The competent authority is directed
to ignore the uncommunicated adverse ACRs and
take a fresh decision in accordance with law.
Patna High Court CWJC No.4882 of 2018 dt.16-01-2024
(b) The appellant shall be afforded an
opportunity of hearing in the process.
4. It will be open to the appellant to
make all available submissions, including the
reference to the judgment of this Court in Prabhu
Dayal Khandelwal V. UPSC.
5. The above exercise shall be completed
within a period of two months from today. No
costs."
9. From the document available on record, it transpires
to this Court that the decision for grant of promotion by virtue
of entries made in the ACR was taken on 30.03.2011 for the first
time and prior to that there was no such restriction. It is also
apparent from the pleading that the petitioner became entitled to
promotion in 2009 but due to the punishment order, his case has
not been considered. It is also true from the pleading that after
the final decision of the order dated 26.08.2010 passed in CWJC
No. 292/2010, there was entitlement of the petitioner for the
MACP. From the judgments of the Hon'ble Apex Court in the
case of Dev Dutt (supra) and Rukhsana Shaheen Khan
(supra), it is very much clear 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
Patna High Court CWJC No.4882 of 2018 dt.16-01-2024
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. In the
case of Rukhsana Shaheen Khan (supra), it has been directed
to the competent authority to ignore the uncommunicated
adverse ACRs and take a fresh decision in accordance with the
law, and the appellant was also directed to be afforded the
opportunity of hearing in the process.
10. In this background, particularly, this Court is of the
view that the impugned order dated 15.02.2018, contained in
Memo No. 450 has been passed without communication of any
entries in the ACR of the petitioner. Therefore, this court sets
aside the order dated 15.02.2018 contained in Memo No.450
passed by the Principal Secretary, Commercial Taxes
Department, Bihar, Patna.
11. The respondent authorities are directed to pass a
fresh order with regard to the petitioner's case after affording
adequate opportunity of hearing to the petitioner in the process,
ignoring the uncommunicated adverse ACRs, as observed by the
Patna High Court CWJC No.4882 of 2018 dt.16-01-2024
Hon'ble Apex Court in the case of Rukhsana Shaheen Khan
(supra).
12. Needless to add, all the exercises shall be done by
the respondents within 90 days from the date of production of a
copy of this order.
13. Accordingly, the writ petition stands allowed.
(Dr. Anshuman, J)
Ashwini/-
AFR/NAFR AFR
CAV DATE NA
Uploading Date 18/01/2024
Transmission Date NA
