Tripura High Court
Suresh Ch. Das vs The State Of Tripura Represented ... on 16 December, 2022
1
HIGH COURT OF TRIPURA
AGARTALA
WA 241 of 2020
Suresh Ch. Das, son of late Sadhan Ch. Das, resident of Lichubagan,
Agartala Municipal Corporation, Ward No. 4, P.O - Kathal Bagan, P.S -
New Capital Complex, Kunjaban, Agartala, West Agartala, District -
West Tripura
-----Appellant(s)
Versus
1.The State of Tripura represented by the Chief Secretary, to the
Govt. of Tripura, having his office at New Secretariat Complex,
Gorkhabasti, Agartala, P.O- Kunjaban, P.S. - New Capital Complex, Sub
-Division- Sadar, District- West Tripura.
2.The Secretary-In-Charge General Administration (Personnel and
Training Dept. ) to the Govt. of Tripura, having his office at New
Secretariat Complex, Gorkhabasti, Agartala, P.O- Kunjaban, P.S. - New
Capital Complex, Sub -Division- Sadar, District- West Tripura
-----Respondent(s)
BEFORE
HON'BLE MR. JUSTICE ARINDAM LODH
HON'BLE MR. JUSTICE S.G.CHATTOPADHYAY
For the Appellant(s) : Mr. S.K. Deb, Sr. Adv.
Mr. S.C.Das, Adv.
For the Respondent(s) : Mr. D.Bhattacharjee, GA.
Date of hearing : 05.12.2022
Date of delivery of : 16.12.2022
Judgment and Order
Whether fit for reporting
Yes No
2
JUDGMENT
(S.G.Chattopadhyay), J
[1] The present writ appeal is directed against the judgment
dated 20.03.2020 passed by the learned Single Judge in WP(C)
No.1041 of 2019.
[2] In view of the legal proposition canvassed on behalf of the
appellant, the sole question arising for our consideration in this writ
appeal is whether the appellant must have been given an opportunity
of hearing even before the adverse entries were made in his ACRs for
the years 2010-11 and 2011-12.
[3] We have heard Mr. S.K.Deb, learned Sr. Advocate
appearing along with Mr. S.C.Das, learned advocate for the appellant
as well as Mr. D. Bhattacharjee, learned GA, appearing for the State
respondents.
[4] The background facts of the case are as under:
As a result of adverse entries in his ACRs for the years
2010-11, 2011-12 and grading below the bench mark for the year
2012-13, the appellant was denied promotion to the next higher grade
of Tripura Civil Services namely 'TCS Selection Grade' and he was also
superseded by his juniors. According to the petitioner he was not given
any opportunity of hearing before the adverse entries were made in his
ACRs for the year 2010-11, 2011-12 and 'GOOD' grading in his ACR for
the year 2012-13 which according to him was also an adverse entry.
He combined all these grievances in WP(C) No.55 of 2015 which was
disposed of by the learned Single Judge by a judgment and order
dated 29.01.2018. The learned Single Judge held that the petitioner
should have been given reasonable opportunity of filing representation
against the downgrading in his ACR for the year 2012-13 and
representation made by him for adverse remarks in his ACRs for the
years 2010-11 and 2011-12 should have been considered by the
authorities concerned. In such view of the matter, the learned Single
Judge in WP(C) No.55 of 2015 had given the following directions to the
said respondents:
"25. Having held thus, the respondents are directed to provide the
petitioner reasonable opportunity for filing the representation
against the downgrading as entered in the ACR for the year 2012-
13 within a time-frame, so that the petitioner if he is so inclined to,
can make such representation against such downgrading in the
formal manner for consideration of the competent authority. The
competent authority shall make a fresh exercise for disposal of the
representation. The representation of the petitioner dated
31.03.2014 against 'adverse' remarks in the ACR for the year
2010-11, representation dated 18.09.2013 against the 'adverse'
remarks in the ACR for the year 2011-12 and the representation
that the petitioner may submit in respect of downgrading of his
assessment in the ACR for the year 2012- 13 shall be reconsidered.
The said exercise of finalizing ACRs of those years (2010-11, 2011-
12 and 2012-13) shall be completed within 30.04.2018 without
fail. If it is found that the petitioner has achieved better ACR
grading or the petitioner has been assessed as fit for consideration
of promotion to the next grade, the case of the petitioner shall be
referred to the review selection committee for reconsideration of
his promotion. In the event, the petitioner is found fit by the
selection committee his appointment shall be made from the day
when the respondent No.13, immediate junior of the petitioner
was promoted in view of the revised procedure for promotion.
Further, in the event of his promotion, the petitioner will get all the
financial benefits for the entire period. If there is no vacancy, the
respondents particularly the respondents No.1 and 2 may create a
supernumerary post with effect from that day in terms of this
order as this court is of the view that after efflux of such a long
time the settled position shall not be disturbed by way of
reversion.
26. In terms as stated, this writ petition stands allowed to the
extent as indicated above. There shall be no order as to costs."
[5] In terms of the said judgment dated 29.01.2018 in WP(C)
No.55 of 2015, appellant made a representation to the Chief Secretary
to the Government of Tripura on 16.03.2018 which reads as under:
"To
The Chief Secretary to the
Government of Tripura
Civil Secretariat, Kunjaban
Agartala
Through proper channel
Ref.: Judgment and order passed by the Hon'ble High Court
of Tripura on 29.01.2018 in W.P.(C)No.55 of 2015(Sri Suresh
Ch. Das Vs. the State of Tripura & others)
Sub: Representation of the petitioner for implementation of
the said judgment & order.
Sir,
The petitioner begs most humbly and respectfully to refer to
the above-cited Judgment & Order passed by the Hon'ble High Court
of Tripura on 29.01.2018 in W.P.(C)No.55 of 2015 and state as
follows:-
1) That the petitioner filed before the Hon'ble High court of
Tripura the above-mentioned writ case with a prayer for expunging
the adverse remarks made in his ACRs for the years 2010-11, 2011-
12 and 2012-13 and for upgrading the ACRs. After hearing both the
sides the Hon'ble High Court passed its judgment and Order on
29.01.2018. For ready reference a copy of the said judgment & Order
dated 29.01.2018 is enclosed and marked as Annexure-1 to this
representation.
2) That the said writ petition of the petitioner was allowed by
the Hon'ble High Court and the following orders/directions were
passed /issued:-
(a) The memorandum No. No.F.3 (2)-GA (P & T) /CON /
2013 dated 28.04.2014 and the memorandum No. No.F.3(2)-
GA(P & T)/CON/2013 dated 04.12.2013 of the GA (P&T)
Department (Annexure 23 and Annexure-26 respectively to
the said writ petition) rejecting the prayer of the petitioner to
expunge the adverse entries and to upgrade them in his
ACRs have been set aside by the Hon'ble Court (vide para-24
of the judgment & order)
For ready reference copies of the said two
memorandum dated 28.04.2014 and the memorandum dated
04.12.2013 of the GA (P&T) Department are enclosed and
marked as Annexure-2 and Annexure-3 respectively to this
representation.
(b) The respondents have been directed to provide the
petitioner a reasonable opportunity of filing a representation
against the downgrading of his ACR for the year 2012-13 for
consideration of the authority and the authority should make
a fresh exercise for disposal of the representation (vide para
25 of the judgment & order)
(c) The representation dated 31.03.2014 already made by
the petitioner against the 'adverse' remarks in his ACR for the
year 2010-11, the representation dated 18.09.2013 already
made by the petitioner against the 'adverse' remarks in his
ACR for the year 2011-12 and representation that the
petitioner may make in respect of the downgrading of his ACR
for the year 2012-13 shall be reconsidered. Such exercise may
be completed within 30.04.2018.(vide para 25 of the
Judgment & Order)
(d) If it is found that the petitioner has achieved better
ACR grading or the petitioner has been assessed as fit for
consideration of promotion to the next higher grade the case
of the petitioner shall be referred to the review selection
committee for reconsideration of his promotion. In the event
the petitioner is found fit by the selection committee his
appointment shall be made from the day when the
respondent No.13, immediate junior of the petitioner was
promoted in view of the revised procedure for promotion.
3) That in compliance with the direction as mentioned in para-
2(b) above it is stated that the petitioner has filed a separate
representation today for expunction and upgradation of the adverse
overall grading "good' in his ACR for the year 2012-13.
4) That the petitioner received the certified copy of the
Judgment & Order of the Hon'ble High Court on 19.02.2018 and as
such there has been some delay in filing this representation.
In view of the facts and circumstances mentioned above, the
petitioner most humbly prays that your good self would be graciously
pleased to implement the said judgment and order of the Hon'ble
High Court;
And
For this act of kindness of your good self the petitioner, as in
duty bound, shall ever pray.
Enclo-as stated (29 sheets)
Date 16.03.2018 Yours faithfully
(Suresh Ch.Das)
Addl. Director
S.C. Welfare Directorate
Government of Tripura
Agartala"
[6] In view of such representation, the state respondents took
a fresh decision and issued the memorandum dated 26.06.2018 which
reads as under:
MEMORANDUM
"Subject : Representation for up-gradation in the ACR for the years
2010-11, 2011-12 & 2012-13 in respect of Shri Suresh Ch. Das,
TCS Gr. I (Now SSG) Addl. Director, SC Welfare Department,
Tripura, Agartala. WHEREAS, Shri Suresh Chandra Das, TCS Gr.I
(now SSG) submitted representation dated 31/3/2014,
18/09/2013 & 16/03/2018 for up-gradation in the ACRs for the
years 2010-11, 2011-12 & 2012-13 respectively. AND WHEREAS, in
compliance of the Order dated 29/01/2018 of the Hon‟ble High
Court of Tripura in the case no. WP(C) 55 of 2015, the
representation of Shri Suresh Chandra Das, TCS towards
upgradation of the remarks of the ACRs for the years: 2010-11,
2011-12 & 2012-13 has been examined by the Government which
reference to the remarks in the said ACRs and also the
representation. NOW THEREFORE, after examining the all aspects
the following are decided:- (i) In regard to the ACR for the year
2010-11, there is no merit on the representation. Therefore, the
grading awarded in the ACR for the year 2010-11 shall "Stand
Good".
(ii) In regard to grading in the ACR for the year 2011-12 the
grading "Average" shall be upgraded as "Good" (iii) In regard to
comments in the ACR fo the year 2012-13 the grading "Good" shall
be upgraded as "Very Good" "
[7] Subsequently, on 13.08.2018 the appellant filed another
representation to the Chief Secretary to the Government of Tripura
and on consideration of the said representation, the state respondents
by a communication dated 24.12.2018 informed the petitioner that
after a careful examination of his representation the state government
was of the view that the said representation dated 13.08.2018
introduced no new fact and as such the earlier decision taken by the
state Government stands good.
[8] Aggrieved appellant again approached this Court by filing
WP(C) No.1041 of 2019 seeking the following reliefs:
i) To issue a rule calling upon the respondents and each of them to
show cause as to why a Writ of Certiorari and / or a Writ or order in
the nature thereof shall not be issued directing the State respondents
to send the records relating to this case unto this Hon'ble Court;
ii) To issue a rule calling upon the respondents and each of them to
show cause as to why a Writ of Certiorari and / or a Writ or order in
the nature thereof shall not be issued quashing the impugned
decision contained in letter No.F.1(2)GA(P&T)/CON/2002(P) dated
the 24th December, 2018 of the GA(P&T)Department of the
Government of Tripura (Annexure-12 supra) shall not be quashed
and set aside;
iii) To issue a rule calling upon the respondents and each of them to
show cause as to why a Writ of Certiorari and / or a Writ or order in
the nature thereof shall not be issued commanding/ directing the
respondent authorities, particularly, the respondent No.1-
(a) to award him the overall grading "very good" in his ACR for the year
2010-11 or to declare it non-existent for the purpose consideration of
promotion ; and
(b) to award the petitioner the overall grading "very good" in his ACR for
the year 2011-12
and/or
To issue any other direction or directions, order or orders as Your
Lordship may deem fit and proper in view of the facts and
circumstances of the case;
and
(iv) To call for the records
And
(v)after hearing the parties be pleased to make the rule absolute in
terms of (i)(ii)and (iii) above,
And
For this gracious act of Your Lordships your humble petitioner, as in
duty bound, shall ever pray"
[9] The sole ground raised by the appellant in WP(C) No.1041
of 2019 was that no adverse entries could be made in the ACR without
giving the concerned employee a prior opportunity of showing cause.
Learned Single Judge has held that if the argument of the petitioner is
that an adverse remark in the service record of an employee cannot be
confirmed without giving him an opportunity of making representation
against such remark he is absolutely correct. But if the contention of
the petitioner is that even before such adverse entries are recorded in
the service record of an employee an opportunity of hearing must be
given to him, there is no legal backing for such proposition.
[10] Relying on the various decisions of the Apex Court, in
which the Hon'ble Apex Court dealt with the similar issue, the learned
Single Judge viewed as under:
"[7] As noted, the petitioner's grievance revolves around the adverse
entries in the ACRs for the years 2010-11 and 2011- 12. The High
Court had given an opportunity to the petitioner to make his
representation against such adverse entries which would be
considered by the competent authority. In the representation that
the petitioner made sole ground raised by him was that proper
procedure before recording such adverse ACRs was not adopted. In
the opinion of the petitioner no such adverse entry can be made
without giving the concerned employee a prior opportunity of
showing cause. If the argument of the petitioner is that an adverse
remark in the service record of an employee cannot be confirmed
without giving him an opportunity of making representation against
such remark, he is absolutely correct and in the present case such
procedure has also been followed. When previously such lacuna was
detected by the High Court, High Court gave suitable directions for
providing opportunity to the petitioner to make representation
against such adverse entries and required the competent authority to
consider such representation. However, if the contention of the
petitioner is that even before such adverse entries are registered in
the service record of an employee an opportunity of hearing must be
given to him, I do not find any legal backing for such proposition As
per settled procedure adverse remarks are to be made and conveyed
to the concerned officer. This conveying of adverse remarks would
have dual purpose. Firstly, it would enable him to make
representation if he thinks that such remarks were not justified. The
remarks may be deleted if his representation is accepted. The second
purpose would be to enable the concerned Government employee to
mend his ways and to improve his performance in the areas where
his service is found wonting. Refer to the judgment in case of State
Bank of India and others versus Kashinath Kher and others
(1996) 8 SCC 762. There is no procedure for giving an opportunity
to the concerned employee even before such remarks are made.
[8] In this context the decisions cited by the counsel for the
petitioner may be examined. In case of State of U.P. versus
Yamuna Shanker Misra and another reported in (1997) 4 SCC
7, following observations have been made:
"It would, thus, be clear that the object of writing the
confidential reports and making entries in the character rolls is
to give an opportunity to a public servant to improve excellence.
Article 51-A (j) enjoins upon every citizen the primary duty to
constantly endeavour to prove excellence, individually and
collectively, as a member of the group. Given an opportunity, the
individual employee strives to improve excellence and thereby
efficiency of administration would be augmented. The officer
entrusted with the duty to write confidential reports, has a public
responsibility and trust to write the confidential reports
objectively, fairly and dispassionately while giving, as accurately
as possible, the statement of facts on an overall assessment of
the performance of the subordinate officer. It should be founded
upon facts or circumstances. Though sometimes, it may not be
part of the record, but the conduct, reputation and character
acquire public knowledge or notoriety and may be within his
knowledge. Before forming an opinion to be adverse, the
reporting officers writing confidentials should share the
information which is not a part of the record with the officer
concerned, have the information confronted by the officer and
then make it part of the record. This amounts to an opportunity
given to the erring/corrupt officer to correct the errors of the
judgment, conduct, behaviour, integrity or conduct/corrupt
proclivity. If, despite being given such an opportunity, the officer
fails to perform the duty, correct his conduct or improve himself,
necessarily the same may be recorded in the confidential reports
and a copy thereof supplied to the affected officer so that he will
have an opportunity to know the remarks made against him. If
he feels aggrieved, it would be open to him to have it corrected
by appropriate representation to the higher authorities or any
appropriate judicial forum for redressal. Thereby, honesty,
integrity, good conduct and efficiency get improved in the
performance of public duties and standard of excellence in
services constantly rises to higher levels and it becomes a
successful tool to manage the services with officers of integrity,
honesty, efficiency and devotion."
The observations in the said judgment for sharing with the
officer information before making the remarks, were in the context of
integrity or corrupt practices and cannot be projected for all kinds of
adverse remarks.
[9] In case of Dev Dutt versus Union of India and others
reported in (2008) 8 SCC 725, the Supreme Court highlighted that
an adverse remark in the service record is to be communicated to the
public servant and he should have a right to make a representation
which must be decided in a fair manner within a reasonable period.
Such representation should be decided by the authority higher than
the one who has made the adverse remarks. In the said case, the
concerned employee was bypassed for promotion relying on adverse
entries which were not communicated. The Supreme Court,
therefore, gave an opportunity to him to make a representation
against such entry and thereafter to reconsider his case for
promotion.
[10] In case of Abhijit Ghosh Dastidar versus Union of India
and others reported in (2009) 16 SCC 146, relying on the
judgment in case of Dev Dutt (supra) it was reiterated that non-
communication of entries in the ACRs lead to civil consequences as
the same may have effect on his promotion prospects. It was further
observed that the grading of "Good" which is below the benchmark
of "Very Good" for promotion ought to have communicated to the
Government servant. In absence of communication such entry should
not have been taken into consideration for promotion.
[11] In case of Sukhdev Singh versus Union of India and
others reported in (2013) 9 SCC 566, the Supreme Court held that
every entry in the ACR whether poor, fair, average, good, very good
or outstanding should be communicated to the employee within a
reasonable period. Communication of only adverse entry is not
enough.
[12] In case of Dr. Umesh Barman versus The State of Assam and
others in WP(C) No.6515 of 2010 decided by the learned Single
Judge of the Gauhati High Court on 29.03.2011 directions were given
to the authorities to review the remarks in view of the fact that the
adverse entries recorded in the ACR of the petitioner were
expunged. On such basis the overall grading of the employee would
have to be reviewed.
[13] None of these judgments thus support the legal proposition
canvassed by the counsel for the petitioner that even before making
adverse entry an opportunity of hearing must be given to the
concerned Government employee. In his representation against the
adverse entries for the years 2010-11 and 2011-12 this was the sole
ground raised by him. He had not raised any factual dispute about
the justness or correctness of the adverse entries. He had not alleged
any personal or legal mala fades on part of the concerned
authorities. In short, he had confined his representation to a single
legal contention which I have turned down.
[14] Under the circumstances, there is no scope for interference in
this petition. Petition is, therefore, dismissed."
[11] It has surfaced from the record that pursuant to the
directions issued by the learned Single Judge in WP(C) No.55 of 2015,
the appellant was given full opportunity of making representations
against the entries made in his ACR. The appellant also submitted
representations which were duly considered by the state respondents
and the decisions were also duly communicated to the appellant.
[12] It is not in dispute that the sole issue raised by the
petitioner in his representation as well as in his second writ appeal
[WP(C) No.1041 of 2019] is that the appellant must have been given
an opportunity of hearing even before recording the adverse entries in
his ACRs for the years 2010-11 and 2011-12. Learned Single Judge has
correctly held that the appellant did not raise any factual dispute about
the justness or correctness of those adverse entries. He did not also
attribute any personal or legal malafides on the part of the concerned
authorities. His only grievance was that he was not given an
opportunity of hearing before these adverse entries were made in his
ACRs for the years 2010-11 and 2011-12. Learned Single Judge has
correctly held that such proposition has no legal backing.
[13] We are completely in agreement with the views of the
learned Single Judge.
[14] Resultantly, the writ appeal stands dismissed.
In terms of the above, the appeals stands disposed of.
(S.G.CHATTOPADHYAY),J (ARINDAM LODH), J
Saikat Sarma
