Gauhati High Court
Smti Namita Rabha vs The Gauhati High Court & 14 Ors on 4 April, 2016
Author: N. Chaudhury
Bench: N. Chaudhury
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Case No: WP(C) 4085/2013
1. Smt. Namita Rabha
W/o Sri Lalit Chandra Basumatari,
R/o Bongaon, Beltola,
Guwahati - 781028, Dist - Kamrup, Assam.
...... Petitioner
-Versus-
1. The Gauhati High Court represented by the Registrar General,
Gauhati High Court, Guwahati.
2. The Registrar (Administration), Gauhati High Court, Guwahati,
3. The Joint Registrar (Administration-I), Gauhati High Court, Guwahati,
4. Sri Benudhar Bez, Senior Administrative Assistant, Gauhati High Court,
5. Sri Ahmadul Ala, Senior Administrative Assistant, Gauhati High Court,
6. Sri Diganta Goswami, Senior Administrative Assistant, Gauhati High
Court.
7. Sri Utpal Buragohain, Senior Administrative Assistant, Gauhati High
Court,
8. Sri Manoj Kr. Goswami, Senior Administrative Assistant, Gauhati High
Court.
9. Sri Nirod Sarma, Senior Administrative Assistant, Gauhati High Court.
10. Sri Dilip Kr. Medhi, Senior Administrative Assistant, Gauhati High Court.
11. Smt. Moushumi Choudhury, Senior Administrative Assistant, Gauhati High
Court.
12. Sri Deabo Dutta Boro, Senior Administrative Assistant, Gauhati High
Court.
13. Sri Christopher Horo, Senior Administrative Assistant, Gauhati High
Court.
14. Sri James Lal Sandam Neingaite, Senior Administrative Assistant, Gauhati
High Court.
Page 1 of 28
WP(C) 4085/2013
WP(C) 4644/2013
15. Sri Benjamin Nampui, Senior Administrative Assistant, Gauhati High
Court.
...... Respondents
WITH
Case No: WP(C) 4644/2013
1. Sri Anil Kumar Singha,
S/o Late Chandramani Singha,
R/o Hengerabari, Nizarapar Path,
Guwahati - 781036
2. Sri Surya Kanta Rajkumar,
S/o Surakanta Rajkumar,
Naba Nagar, Near P.H.E. Colony,
Hengrabari, Guwahati - 781036
3. Md. Arman Ali,
S/o Samnur Ali, Village & P.O. Saniadi,
P.S. Hajo, District - Kamrup, Assam
...... Petitioners
-Versus-
1. The Gauhati High Court represented by the Registrar General,
Gauhati High Court, Guwahati.
2. The Registrar (Administration), Gauhati High Court, Guwahati,
3. The Joint Registrar (Administration-I), Gauhati High Court, Guwahati,
4. Sri Benudhar Bez, Senior Administrative Assistant, Gauhati High Court,
5. Sri Ahmadul Ala, Senior Administrative Assistant, Gauhati High Court,
6. Sri Diganta Goswami, Senior Administrative Assistant, Gauhati High
Court.
7. Sri Utpal Buragohain, Senior Administrative Assistant, Gauhati High
Court,
Page 2 of 28
WP(C) 4085/2013
WP(C) 4644/2013
8. Sri Manoj Kr. Goswami, Senior Administrative Assistant, Gauhati High
Court.
9. Sri Nirod Sarma, Senior Administrative Assistant, Gauhati High Court.
10. Sri Dilip Kr. Medhi, Senior Administrative Assistant, Gauhati High Court.
11. Smt. Moushumi Choudhury, Senior Administrative Assistant, Gauhati High
Court.
12. Sri Deabo Dutta Boro, Senior Administrative Assistant, Gauhati High
Court.
13. Sri Christopher Horo, Senior Administrative Assistant, Gauhati High
Court.
14. Sri James Lal Sandam Neingaite, Senior Administrative Assistant, Gauhati
High Court.
15. Sri Benjamin Nampui, Senior Administrative Assistant, Gauhati High
Court.
16. Sri Henghoumang Lhoujiem, Senior Administrative Assistant, Gauhati
High Court.
17. Sri Dilip Kr. Baruah, Senior Administrative Assistant, Gauhati High Court.
18. Sri Jitu Bharali, Senior Administrative Assistant, Gauhati High Court.
19. Smt. Utpala Sonowal, Senior Administrative Assistant, Gauhati High
Court.
20. Sri Kabir Rahman Bora, Senior Administrative Assistant, Gauhati High
Court.
...... Respondents
-BEFORE-
HON'BLE MR. JUSTICE N. CHAUDHURY
For the Petitioners : Mr. D Das
Sr. Advocate
Mr. S Khound
Advocate
Page 3 of 28
WP(C) 4085/2013
WP(C) 4644/2013
For the Respondents : Mr. KN Choudhury
Sr. Advocate
Mr. RK Dubey
Advocate
Mr. SK Medhi
SC, GHC
Date of Hearing : 10.03.2016
Date of delivery of
Judgment and Order : 04.04.2016
JUDGMENT AND ORDER (CAV )
The two writ petitions, namely, WP(C) No. 4085/2013 and WP(C) No.
4644/2013 have been filed by four employees of this High Court espousing same
grievance and challenging the same orders passed by High Court in
administrative side thereby cancelling the promotion of the petitioners in the rank
of Senior Administrative Assistant (hereinafter referred to as "SAA") and
consequently giving promotions to the private respondents against the posts so
vacated by them. WP(C) No. 4085/2013 has been preferred by one lone
petitioner, Smti. Namita Rabha whereas WP(C) No. 4644/2013 has been
preferred by three petitioners, namely, Sri Anil Kumar Singha, Sri Surya Kanta
Rajkumar and Md. Arman Ali. As both the writ petitions have more or less
identical pleadings with same prayer, the respondents have filed affidavit-in-
opposition in one case, namely, WP(C) No. 4085/2013 and the learned counsel
for the respondents submitted at the time of argument that the affidavit-in-
oppositions filed in WP(C) No. 4085/2013 be considered as reply to the pleadings
Page 4 of 28
WP(C) 4085/2013
WP(C) 4644/2013
of both the writ petitions. Under the aforesaid circumstances, the writ petitions
are analogously heard on the basis of one set of pleadings. The WP(C) No
4085/2013 is considered to be the lead case for the purpose of hearing.
2. It is the case of the writ petitioners that they were initially appointed as
extra typists by the High Court on various dates from 1989 to 1996. They claim
to have been subsequently appointed as regular typists. On 20.6.2007 by
another order passed by the Registrar General of the High Court, they were
promoted and appointed as Lower Division Assistants w.e.f. the date of their
joining in the scale of pay of Rs. 3490-90-4480-120-4600-EB-120-5200-175-
6600-250-8100/- per month plus other allowances as admissible under the rules.
In the mean time, the posts of Lower Division Assistant were renamed as that of
Junior Administrative Assistant (hereinafter referred to as "JAA"). They
immediately joined to the promotional post. On 16.11.2011 by yet another order
of the Registrar General of the High Court, all the petitioners were promoted and
appointed as Senior Administrative Assistant (hereinafter referred to as "SAA")
against various posts in the Pay Band of Rs. 8000-35000/- per month with Grade
Pay of Rs. 4300/- per month plus other allowances as admissible under the rules
w.e.f. the date of their joining. It is needless to say that the petitioners
immediately reported for joining to the promotional posts. According to the
petitioners, their promotion to the post of SAA was preceded by a due process of
selection conducted by a duly constituted committee of Hon'ble Judges in
accordance with the rules and executive instructions in force at the relevant point
of time. Precisely, this was done in terms of Rule 18 of the Gauhati High Court
Page 5 of 28
WP(C) 4085/2013
WP(C) 4644/2013
Services (Appointment, Conditions of Service and Conduct) Rules 1967
(hereinafter referred to as 'the Rules'). Rule 18 prescribes that the vacancies in
the higher grades of Ministerial Services shall be filled up according to merit, and
ordinarily by promotion from the lower grades, seniority being counted only
when the merit is equal. This is why there was supersession of some senior
incumbents in the cadre of JAA.
3. The problem started thereafter when as many as 12 JAAs submitted a
representation on 19.01.2012 challenging the promotion of the petitioners and
others by aforesaid notification dated 16.11.2011 and 05.01.2012. According to
them, their supersession was bad for the following reasons:-
(i) Remarks in Annual Confidential Report (for short, 'ACR') for
five years were taken into consideration for evaluating comparative merit
but these ACRs were never communicated to the representationists. This
is in contravention of the law laid down by the Hon'ble Supreme Court in
the case of Dev Dutt vs. Union of India & ors. reported in (2008) 8 SCC
725.
(ii) Because of anomalies in the office notes, excessive
number of incumbents were considered for promotion. Since there were
only 12 vacancies to be filled up, 28 candidates only were in the zone of
consideration but the DPC considered cases of 30 candidates including 6
candidates who did not complete 5 years of service in the rank of JAA.
These 6 candidates include the present writ petitioners.
Page 6 of 28
WP(C) 4085/2013
WP(C) 4644/2013
(iii) Improper formats were used for deducing comparative
merit from ACRs and there were defects in giving remarks in the ACRs.
Giving examples, it was shown that remarks against various attributes in
ACRs of persons though almost same as recorded by the Recording
Officer but they were differently graded as good, very good, outstanding
etc.
(iv) The prayer of the superseded employees for representing
before larger committee like Administrative Committee was denied.
With such objections supported by detailed and illustrated instances, the
representation was filed asking for review of the entire matter involving
promotion of 13 JAAs. The Registry of the High Court asked the present
petitioners and other promotees to furnish their response in respect of the
contentions raised in the aforesaid representation within a period of 15 days. The
four petitioners herein submitted reply on 02.05.2012 stating that the whole
process of promotion was dealt with by the then DPC and their names were
forwarded by the establishment section. The DPC found them fit for being
promoted and accordingly promotion order was issued.
4. According to the writ petitioners, subsequently they received impugned
notice dated 25.06.2013 informing that as per resolution dated 11.02.2013
adopted by a committee of Judges and subsequent approval thereof by the
Hon'ble Chief Justice, they would be reverted to the post of JAA maintaining their
inter-se-seniority. According to them, they were not furnished with any copy of
resolution dated 11.02.2013. However, they immediately submitted a petition to
Page 7 of 28
WP(C) 4085/2013
WP(C) 4644/2013
the authority on 28.06.2013 registering their protest and prayed for being heard.
They subsequently came to know that on 18.07.2013 the Registrar
(Administration) of the High Court who has been impleaded as respondent No. 2
herein, issued an order reverting the petitioners to their original cadre of JAA
maintaining inter-se-seniority in that cadre with immediate effect. On the
following day, i.e. on 19.07.2013 yet another order was issued by the same
authority promoting and appointing 12 persons to the post of SAA who have
been impleaded as private respondents No. 4 to 16 in the present writ petitions.
Besides, vide Memo No. HC.V 8/2012/1626/Esstt. another set of 4 persons were
promoted to the rank of SAA who have been impleaded as respondents No. 17 to
20 herein. By filing the two writ petitions the petitioners have challenged the two
orders dated 18.07.2013 and 19.07.2013 referred to above whereby they were
reverted from the post of SAA and subsequently the private respondents were
promoted and appointed as SAA.
5. The case of the writ petitioners is that under Rule 18 of the Rules,
promotion to the next higher grade or cadre can only be made on the basis of
merit and seniority can be considered if merit position of any two candidates is
equal. Moreover, Rules do not prescribe any particular period of qualifying
service for promotion to the next higher cadre. According to the writ petitioners,
no show cause notice was issued to them before reversion and the letter dated
25.06.2013 was merely an intimation after taking the decision to revert. The
impugned actions, therefore, are vitiated for violation of the principles of natural
justice. By furnishing illustration of the cases of Bhabendra Nath Das, Abdul
Page 8 of 28
WP(C) 4085/2013
WP(C) 4644/2013
Jabbar, Jiban Das, Chabin Kalita, Hemen Deka and Dipak Prasad, the petitioners
contended that all these persons were promoted to the rank of SAA although
they had not completed 5 years of service in the feeder cadre. They were
appointed as LDA (now designated as JAA) on 16.10.2004 and were promoted to
the post of UDA (now designated as SAA) on 25.07.2007. Thus, they had less
than 3 years of service in the feeder cadre of JAA but they were promoted to the
cadre of SAA. The impugned action of reverting the petitioners to the cadre of
JAA on the presumption that they had not completed 5 years of qualifying service
in the feeder cadre, therefore, is not only without prescription of Rules but also
contrary to the established past practice. It is a punishment in disguise without
following the due process. With all these submissions, the petitioners prayed for
issuance of appropriate writ so as to quash and set aside the impugned orders
dated 18.07.2013 and 19.07.2013.
6. Subsequently, on 30.08.2013 an additional affidavit was filed in WP(C)
No. 4644/2013 by Sri Anil Kumar Singha annexing a copy of order dated
07.08.2013 which reads as follows:
"ORDER
Dated Guwahati the 7th August, 2013
No. HC.V-8/2012/1753/Estt. # # # The Hon'ble the Chief Justice has
been pleased to order that the zone of consideration for promotion to the post of
Senior Administrative Assistant in the Gauhati High Court will be 5 years
continuous service in the feeder post of Junior Administrative Assistant.
By order,
Sd/- R. Duarah
REGISTRAR (ADMN.)"
Page 9 of 28
WP(C) 4085/2013
WP(C) 4644/2013
By annexing the aforesaid order, the petitioners contended that 5 years of
continuous service in the feeder cadre was never a requirement till 07.08.2013
and so promotion of the petitioners to the cadre of SAA without there being 5
years of service in the feeder cadre was an erroneous decision. The subsequent
executive instruction dated 07.08.2013 could not have been given retrospective
effect for reverting the petitioners.
7. On 20.09.2013, the same deponent filed another affidavit in WP(C) No.
4644/2013 bringing on record that during pendency of the writ petition, the
Registrar General of the High Court promoted the present petitioners along with
others again to the rank of SAA from where they had been reverted on
18.07.2013. The order dated 11.09.2013 has been brought on record by filing
this affidavit. Three days thereafter on 23.09.2013, a third affidavit has been
filed in WP(C) No. 4644/2013 by petitioner stating that notices on respondents
No. 1, 2, 3, 4, 5, 8, 14, 15 and 17 were supposed to be served by Dasti service.
However, respondents No. 1 to 3 being official respondents had already entered
appearance through the learned Standing Counsel and notices by Dasti service
on respondents No. 4, 5, 8, 14, 15 and 17 had already been made.
8. On 05.08.2014, the Registrar General of the High Court submitted an
affidavit-in-opposition on behalf of respondents No. 1, 2 and 3. The facts as to
appointment of the petitioners as extra typists, regularisation as typists and their
promotion to the post of Lower Division Assistant was admitted in the affidavit.
The deponent further stated that zone of consideration for promotion as
prescribed by the Department of Personnel and Training, Government of India
Page 10 of 28
WP(C) 4085/2013
WP(C) 4644/2013
vide O.M. dated 12.10.1990 and 22.04.1990 were adopted by High Court vide
order of the Hon'ble Chief Justice passed on 01.07.2011. The High Court issued
an order on 13.06.2011 prescribing that promotion of officer and staff of the
Gauhati High Court shall be made on the basis of merit cum seniority and the
DPC shall scrutinise the ACRs of the concerned officers and staff for the last five
years and those with the best/better ACRs shall be promoted. If the ACRs of
some candidates are found equal, then the senior most shall be promoted. As an
elbow room within the confines of the ACR is available, the concerned committee
shall make use of it as and when required. It was also disclosed in the same
affidavit that applying the aforesaid criteria for promotion as envisaged and also
on scrutiny of the relevant ACRs of the eligible JAAs, their seniority and overall
suitability, the DPC vide resolution dated 30.08.2011 recommended the names of
the petitioners along with other 12 candidates for promotion to the post of SAA.
In this process, there was supersession of some senior candidates who
subsequently submitted representations for review and the same was placed
before the DPC. The DPC rejected the representations on 24.09.2011 and
05.11.2011 and thereafter promotion orders dated 16.11.2011 and 05.10.2012
were issued in favour of the recommended candidates. After issuance of the
promotion orders, the aggrieved senior incumbents in the cadre of JAA submitted
further representation on 15.12.2011, 04.01.2012, 19.01.2012, 25.01.2012 and
03.04.2012 for reviewing the promotion order dated 30.08.2011. The promotees
were given opportunity to submit their response whereupon the petitioner along
with three others submitted reply on 02.05.2012. The representations along with
Page 11 of 28
WP(C) 4085/2013
WP(C) 4644/2013
the response were placed before the DPC consisting of two Hon'ble Judges. The
said committee adopted resolution on 18.09.2012 directing reversion of the
promotes to the original cadre of JAA as they had not completed 5 years of
service in the cadre of JAA on the date of consideration of their cases for
promotion. The Hon'ble Chief Justice by order dated 09.10.2012 directed that the
employees be given opportunity of hearing before taking a final view. The matter
was thereafter placed before the DPC which adopted resolution on 11.02.2013
and reviewed the earlier promotions. As stated in the affidavit, this committee
assessed all the candidates as 'Good' and 'Fit for promotion' and resolved that
the promotion to the rank of SAA would be determined on the basis of their
inter-se-seniority position in the rank of JAA except those who did not have the
qualifying service of 5 years in the rank of JAA. Accordingly, committee
recommended 13 candidates for promotion. The minutes of all these resolutions
including resolution dated 18.09.2012 and 11.02.2013 have been annexed to the
affidavit-in-opposition. On the basis of the aforesaid resolution, petitioners Anil
Kumar Singha, Surya Kanta Rajkumar, Arman ali and Smti. Nameeta Rabha were
required to be reverted to the cadre of JAA in the interregnum. However, this
would be done without any recovery of any pay in the rank of SAA. These
persons were intimated by letter dated 25.06.2013 about their reversion and also
that their names had been recommended for promotion again against anticipated
vacancy.
9. Replying to paragraph 7 of the writ petition, the respondents No. 1 to 3
stated that representations submitted by the petitioners on 27.06.2013 and
Page 12 of 28
WP(C) 4085/2013
WP(C) 4644/2013
28.06.2013 were laid before the Committee on 28.06.2013 for consideration and
thereupon the Committee by order dated 16.07.2013 directed the Registry to
proceed as per the resolution dated 11.02.2013 and this is how the impugned
reversion orders dated 18.07.2013 and promotion of the private respondents by
order dated 19.07.2013 were issued.
10. In the aforesaid affidavit-in-opposition submitted on behalf of the
respondents No. 1, 2 and 3 on 05.08.2014, the minutes of the meeting held on
18.09.2012 of the Committee considering the representation submitted by the
JAAs against earlier promotion of the petitioners herein, have been annexed as
Annexure-19. The committee consisting of three Hon'ble Judges of this High
Court thoroughly considered the respective cases of both sides and also took
note of the relevant records. The case of the representationists, the response of
the promotees and deliberation and analysis of the whole gamut of the case have
been discussed in separate heads. The Committee found that the senior most
representationist JAA, Sri Nathuni Rai was going to retire from service on
superannuation on 31.01.2013 and so he was hardly left with four months of
service. The another representationist Ahmedul Ala had been earlier
recommended for promotion to SAA on 03.01.2011 but the same did not
materialise for want of vacancy. Five months thereafter when a vacancy arose he
was not promoted but his case was clubbed with the case of other JAAs for
consideration at the next DPC held on 30.08.2011. This time he was not
recommended. The minutes of the meeting held on 18.09.2012 contain, inter
alia, the following observations:
Page 13 of 28
WP(C) 4085/2013
WP(C) 4644/2013
"It is an admitted fact that the overall gradings in the ACRs of the
incumbents which were considered by the DPC were never communicated to
them, which aspect of the matter was duly taken note of by another DPC in its
meeting held on 06.01.2012. In the ACR format, there is a column entitled
"Certify that unfavourable remarks recorded have been communicated to the
employee concerned" but in all the ACRs, the said column is blank without any
remark and also not signed by the authority indicated under the said column.
This position leads to the irresistible conclusion that the un-communicated
remarks which were adverse in the context of guiding principles for promotion
were never communicated to the incumbents, whose cases were under
consideration but yet the same was the whole basis of making the
recommendation for promotion. It is in this context, the representationists have
referred to Dev Dutt (Supra), in which the Apex Court has observed thus:-
"16. In our opinion if the Office Memorandum dated
10/11.09.1987, is interpreted to mean that only adverse entries (i.e.
'poor' entry) need to be communicated and not 'fair', 'average' or
'good' entries, it would become arbitrary (and hence illegal) since it may
adversely affect the incumbent's chances of promotion, or to get some
other benefit. For example, if the bench mark 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 to for some other extraneous
consideration.
17. In our opinion, every entry in the A.C.R. 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 entry may adversely affect the employee in two
ways : (1) Had the entry been communicated to him he would know about
Page 14 of 28
WP(C) 4085/2013
WP(C) 4644/2013
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 Vs. Union of India that
arbitrariness violates Article 14 of the Constitution.
"26. In our opinion, our natural sense of what is right and wrong
tells us that it was wrong on the part of the respondent in not
communicating the 'good' entry to the appellant since he was thereby
deprived of the right to make a representation against it, which if allowed
would have entitled him to be considered for promotion to the post of
Superintending Engineer. One may not have the right to promotion, but
one has the right to be considered for promotion, and this right of the
appellant was violated in the present case."
Above apart, on perusal of the ACRs of all the incumbents who were within the
zone of consideration, what we find is that there was no basis of writing the ACRs. Most
importantly, the gradings of the reporting Officer have been merrily downgraded by the
final authority without assigning any reason. In many cases, although the gradings
earned by the incumbents under different heads are the same, but finally there is wide
variation in overall gradings, coupled with the fact that, as indicated above, such down
gradation or adverse remark in the context of promotion had never been communicated
to the incumbents. Non-application of mind in writing the ACRs is further demonstrated
in making the remark, such as "cleared all the pending files" inasmuch as, the incumbent
concerned being in the Protocol Section during the particular period was not involved
with clearing of any pending files. Adding insult to the injury, the remark was recorded
by the Criminal Revision Section, although, he was attached to Protocol Section. There
are many such features which have made the ACR writing a useless formality but on the
Page 15 of 28
WP(C) 4085/2013
WP(C) 4644/2013
basis of which promotions have been made. The Committee feels that there has been
injustice and derogation of justice, fair play and transparency in the matter.
We understand that some of the ACRs had been written in one go without any
objectivity attached to it and had been written hurriedly at the eleventh hour to fill up the
gap. Irrespective of the overall faulty procedure, all the represetationists vis-a-vis the
promottees have been graded such, barring a very few, all are more or less at par in ACR
gradings.
It has rightly been contended by the represetationists that in the matter of
promotion to the cadre of SSA (sic SAA), it is only the five years ACRs of the feeder grade
i.e. JAA are required to be considered. However, as intimated above, at least in 6(six)
cases "Shri Gautam Bezbaruah; Shri Uttam Das; Shri Antil Kr. Singha; Shri Arman Ali;
Smt. Namita Rabha and Shri Surya Kanta Rajkumar", the incumbents did not have five
years of service in the feeder cadre of JAA but yet they have been recommended for
promotion taking into account their services in the earlier feeder grade of Typist.
The Committee has very carefully noted the principle relating to consideration
for promotion which is merit-cum-seniority. The DPC is required to scrutinize the ACRs
of the concerned JAAs for the last 5 (five) years and those with the best/better ACRs, shall
be promoted. If the ACRs of the some candidates are found equal, then the senior most
shall be promoted. As an elbow room within the confines of the ACR is available, the
DPC shall make use of it as and when required. However, if the DPC is to follow only the
overall gradings earned by the incumbents in their ACRs and that too recorded with the
above methodology, in the considered view of the Committee, it would render the process
of selection, a mechanical one, without there being any role of the DPC as is understood
in the context of consideration of promotion by the DPC with objectivity attached to it.
Page 16 of 28
WP(C) 4085/2013
WP(C) 4644/2013
As has been held by the Apex Court in Anil Katiya Vs. Union of India, reported in
(1997) 1 SCC 280, it is for the DPC to grade the Officers in consideration of the various
entries in the ACRs and just not follow the overall gradings in the ACRs. In the instant
case, the DPC while recommending the promottees, did not grade them independently but
only followed the overall gradings in their ACRs as the basis for recommendation. It is
also on that basis, promotions have been recommended and in the process even some of
the promotees have been superseded inter se.
In view of the above, we have very carefully considered the individual ACRs of
all the incumbents whose cases were considered by the DPC taking note of each one of
the entries and remarks thereof. With such consideration, the Committee is of the
considered opinion that all the representationists including the writ petitioner and the
promotes except Shri Nathuni Rai and the six erstwhile Typists indicated above, are
needed to be graded as "Good" and "Fit for promotion". Consequently, they are entitled
to get promotion to the cadre of SSA (sic SAA) maintaining their inter se seniority from
the date when the junior promotes superseded them. This however, will be excluding
those six Typists subsequently promoted to JAA and did not have 5(five) years of service
in the feeder grade of JAA on the date of consideration by DPC. Their cases will have to
be considered only on completion of 5(five) years of service in the cadre of JAA. Same is
the case with two of the representationists, namely, Shri Harekrishna Choudhury and
Shri Jehirul Islam, who also did not have the requisite length of service as JAA on the
date of consideration."
11. The Committee considered the case of Nathuni Rai to be eligible for
promotion prospectively in view of gradings given in his ACRs for last 2 years as
'Good' and 'Fit for promotion'. As he was supposed to retire on 31.01.2013, the
Page 17 of 28
WP(C) 4085/2013
WP(C) 4644/2013
post to be vacated by him as SAA was directed to be filled up by left out senior
most/ recommended JAA on his retirement. The Committee ultimately made the
following representations:
"(d) Recommendations:
In view of the above, the Committee makes the following
recommendations:-
i) Since the incumbents i.e. the representationists including the writ
petitioner vis-a-vis the promotes have all been graded as "Good"
and "Fit for Promotion", the promotions to the cadre of SAA be
affected from the date when the promotes were promoted
maintaining the inter se seniority in the cadre of JAA with notional
fixation of pay without any back wages and actual pay from the date
of assumption of charge of SSA (sic SAA).
ii) If in the process, some of the promotees are required to be reverted
to their former cadre of JAA, consequential order may also be
passed. However, since they have also been recommended for
promotion, they may also be promoted against the available
vacancies and also against future vacancies, as and when will arise.
However, there may not be any recovery of the pay and allowances,
they have already received in the promotional post, but their pay
shall be so re-fixed in the cadre of JAA as if they had continued in
the said cadre without the promotion to SAA
iii) So far as 6 (six) Typists, who were subsequently promoted to the
cadre of JAA and representationists Shri Hare Krishna Choudhury
and Shri Jehirul Islam are concerned, they having not completed 5
(five) years of service in the cadre of JAA on the date of
consideration of their cases for promotion, their cases could not have
been considered and recommended being ineligible and consequently
upon reversion of the six promotes to the cadre of JAA, their cases
including that of Shri Hare Krishna Choudhury and Shri Jehirul
Page 18 of 28
WP(C) 4085/2013
WP(C) 4644/2013
Islam may be considered afresh against available vacancies on
completion of five years of service in the cadre of JAA.
iv) The senior most JAA, namely, Shri Nathuni Rai, be promoted to the
cadre of SAA prospectively against any available vacancy.
v) All the representations would stand disposed off in the above
manner."
12. I have heard Mr. D Das, learned senior counsel assisted by Mr. S Khound
for the petitioners, Mr. KN Choudhury, learned senior counsel assisted by Mr. RK
Dubey, learned counsel for the private respondents and Mr. SK Medhi, learned
Standing Counsel of the Gauhati High Court in both the writ petitions. I have
perused the writ petitions, the affidavit-in-oppositions, the additional affidavits
and the judgments relied on by the learned counsel for the parties.
13. Mr. D Das, learned senior counsel, argued that the Committee of judges
committed error in allowing representation of the private respondents on
18.09.2012 which has been annexed as Annexure-19 to the affidavit-in-
opposition filed by the Gauhati High Court. This is because, same representation
had been rejected by the four other committees on previous occasions after
applying mind and so there was no question of reviewing the same. Such an
action is illegal and unauthorised. He further argues that the DPC adopted
resolution to cancel the promotion already granted to the petitioners only on the
ground that they had not completed 5 years as JAA and so they were not eligible
for promotion. According to Mr. Das, such a provision was laid down for the first
time by a notification dated 07.08.2013 which shows that at the time when the
resolution dated 18.09.2012 was adopted, there was no requirement for 5 years
service in the feeder cadre. Such a decision of the DPC, therefore, giving
Page 19 of 28
WP(C) 4085/2013
WP(C) 4644/2013
retrospective effect to the order dated 07.08.2013 is also equally illegal and
unauthorised. The third ground argued by Mr. Das is that the cases of the
petitioners were not considered before giving promotion to the private
respondents and they were not given any opportunity of hearing before
cancelling the promotion orders. With these submissions, he prayed that the writ
petitions be allowed setting aside the impugned orders dated 18.07.2013 and
19.07.2013 which are annexed as Annexure-28 and Annexure-30 to the affidavit-
in-opposition filed by the Gauhati High Court and as Annexure-I and Annexure-J
of the writ petition.
14. On the other hand, Mr. KN Choudhury, learned senior counsel
representing the private respondents, submits that review by an administrative
authority does not require any statutory provision. If the administrative authority
finds that an earlier order was wrongly passed, it can very much review the same
at its own accord. He cited the decision of Hon'ble Supreme Court in this regard
in the case of RR Verma vs. Union of India reported in (1980) 3 SCC 402. Coming
to the argument of Mr. D Das, learned senior counsel, as to the correctness of
the decision taken on 18.09.2012 by the Committee of Judges, Mr. Choudhury
would argue that the resolution adopted on 18.09.2012 cuts at the very root of
the case of the petitioners. The Committee held that the ACRs of all the
candidates falling within the zone of consideration were not duly evaluated and
specific instances were cited in the minutes of the meeting. The Committee was
of the view that all the candidates are to be considered as "Good" and "Fit for
promotion" and consequently under Rule 18 of the Service Rules, seniority
Page 20 of 28
WP(C) 4085/2013
WP(C) 4644/2013
becomes the yardstick. He strenuously urges that the minutes dated 18.09.2012
were never challenged by the writ petitioners either by way of amendment or
otherwise and thus the writ petition really has become untenable. Once the
minutes dated 18.09.2012 are allowed to remain in force, the DPC cannot be
faulted for cancelling promotion of the petitioners to give way to the private
respondents. According to him, the ACRs for 5 years of all the candidates
including the petitioners were considered by the DPC and thereupon decision was
arrived at. The Committee of Judges before arriving at the decision on
18.09.2012 in regard to representation of the private respondents had admittedly
given opportunity to the writ petitioners for placing their case who did not
contest the representation in right earnest and merely stated that their
promotions had been given by the competent authority after due perusal of the
materials on record. The sum total of his argument is that DPC is not bound to
accept the ACRs at their face value and can very well take its own decision on
the eligibility and suitability of the candidates by independently applying mind on
the basis of the materials placed before it. In support of his argument he has
placed reliance on the case of UPSC v. Rajaiah and ors. reported in (2005) 10
SCC 15. So, the writ petitions do not have any merit and they are liable to be
dismissed.
15. Mr. SK Medhi, learned Standing Counsel of Gauhati High Court, submits
that the writ petitioners are not permitted to challenge a decision without
challenging the decision making process. Drawing attention of the court to the
annexures of the affidavit-in-opposition filed on behalf of the Gauhati High Court,
Page 21 of 28
WP(C) 4085/2013
WP(C) 4644/2013
he urges that the Committee of Judges while considering the representation of
the private respondents took into account all the objections raised by them and
also considered the individual ACRs. The Committee was satisfied that ACRs were
not properly evaluated and graded and by applying independent mind they
considered all the candidates to be "Good" and "Fit for promotion". This decision
arrived at on 18.09.2012 has attained finality as the writ petitioners did not
challenge the same. They have merely challenged their reversion and consequent
promotion of the private respondents. Be that as it may, even the writ petitioners
were subsequently promoted to the cadre of SAA and so all the writ petitioners
and private respondents are now in the same cadre. Taking a queue from the
argument of Mr. KN Choudhury, learned senior Advocate, Mr. Medhi also submits
that the writ petitioners not having challenged the minutes dated 18.09.2012,
they cannot challenge the consequential orders passed on 18.07.2013 and
19.07.2013. The net result is that the writ petitions are to be dismissed.
16. Having heard the learned counsel for the parties, I have given my anxious
considerations to the points raised in the light of the materials placed before me
vis-a-vis the reported judgments relied on by the parties.
17. In this case, at the time of consideration of the representation submitted
by private respondents, the Committee of Judges considered the ACRs of all the
candidates falling within the zone of consideration. The minutes of the meeting
held on 18.09.2012 show that the committee came across materials before it
from the ACRs to hold a view that evaluation was not uniformly made in the
ACRs resulting in anomaly. The specific finding is that there was no basis of
Page 22 of 28
WP(C) 4085/2013
WP(C) 4644/2013
writing the ACRs and gradings of Reporting Officers have been merrily
downgraded by the final authority without assigning any reason. The committee
also held the view that gradings earned by incumbents under different heads
being same, final gradings were varied coupled with the fact that such down
grading or adverse entries have never been communicated to the concerned
employees. According to the committee, there was non-application of mind in
writing the ACRs and even those employees including employees of Protocol
section who have no business to deal with files, remark "Cleared all the pending
files" have been lavishly put in their favour. Having noticed the individual cases
the committee was of the view that ACR writing became a useless formality and
there has been injustice and derogation of justice, fair play and transparency in
the matter. These findings of the Committee of Judges coupled with the
observation that some ACRs had been written in one go without any objectivity
attached to it and filled up at the eleventh hour, have gone unchallenged till
date. On the backdrop of these findings, the Committee of Judges held the view
that all the incumbents are needed to be graded as "Good" and "Fit for
promotion" and so they are entitled to get promotion to the cadre of SAA on the
basis of their inter-se-seniority.
18. It is true that the aforesaid findings of the Committee of Judges on the
representation of superseded employees was an exercise of review as similar
prayer was earlier rejected by previous committees. Although, Mr. D Das, learned
senior counsel, has argued that such an exercise of review is not permissible
without there being any statutory provision, such an argument does not appear
Page 23 of 28
WP(C) 4085/2013
WP(C) 4644/2013
to be forceful and persuasive. The principle that power of review is only a
creature of statute either specifically or by necessary implication, is applicable
only where the authority exercises judicial or quasi-judicial power vested in it by
statute. It does not apply to purely administrative decision. In administrative
exercises, the authority must be free to alter its policy or its decision once it is of
the view that the earlier decision was erroneous and such an authority cannot be
hidebound by rules and restrictions of judicial procedure. A view taken by the
administrative authority on review, however, is subject to judicial review. The
Hon'ble Supreme Court has held the above view in the case of R.R. Verma
(supra). The Committee of Judges discharged executive function while
considering the representation filed by 13 employees and the same not being a
judicial or quasi-judicial exercise, the Committee was entitled to review its earlier
view. The first argument put forward by Mr. D Das, learned senior Advocate,
questioning the power of review of the Committee of Judges, therefore, is not
acceptable.
19. Once, it is held that there was no jurisdictional error on the part of the
Committee of Judges in adopting resolution dated 18.09.2012, the findings
recorded therein are to be taken at face value since no challenge has been made
for judicial review of those findings. The whole minutes dated 18.09.2012 were
annexed at Annexure-19 of the affidavit-in-opposition submitted on behalf of the
High Court Registry but even thereafter the writ petitioners have not chosen to
amend the writ petition and/or to otherwise challenge the findings in the
resolution dated 18.09.2012. In the absence of challenge, the findings of
Page 24 of 28
WP(C) 4085/2013
WP(C) 4644/2013
resolution dated 18.09.2012 are to be taken as final and at face value. If this is
done in that event, the petitioners and the respondents have same merit. All of
them have been finally graded as "Good" and "Fit for promotion" and so naturally
under Rule 18 of the Rules they will be entitled to benefit of promotion on the
basis of seniority. The argument of Mr. D Das that Rule 18 of the Rules
prescribing promotion on the basis of merit of seniority has been violated in the
present case, is not tenable under the aforesaid circumstances.
20. The only question remains to be answered is whether the eligibility
criteria of 5 years service in the feeder cadre was necessary in the present case.
It appears that the requirement of 5 years eligibility was prescribed only by
notification dated 07.08.2013. This has been annexed as Annexure - I to the
additional affidavit submitted on behalf of the petitioner on 30.08.2013 in WP(C)
4085/2013. The order dated 07.08.2013 is quoted below:-
ORDER
Dated Guwahati the 7th August, 2013 No.HC.V-8/2012/1753/Estt. # # # The Hon'ble the Chief Justice has been pleased to order that the zone of consideration for promotion to the post of Senior Administrative Assistant in the Gauhati High Court will be 5 years continuous service in the feeder post of Junior Administrative Assistant.
By Order Sd/- R. Duarah REGISTRAR (ADMN.) On the other hand, the writ petitioners have furnished a list of cases including the case of Bhabendra Nath Das, Abdul Jabbar, Jiban Das, Chabin Page 25 of 28 WP(C) 4085/2013 WP(C) 4644/2013 Kalita, Hemen Deka and Dipak Prasad to show that these JAAs were promoted on 25.07.2007 much before completion of 5 years in the cadre of JAA. The petitioners have furnished some instances wherein similar promotions were given before completion of 5 years even after issuance of notification dated 07.08.2013. Of course, by furnishing records, the Registry has shown that in the latter cases, the Hon'ble Chief Justice relaxed rule by passing individual orders.
21. Rule 18 of the Rules governing the service condition of employees of the Gauhati High Court does not contain any eligibility criteria of 5 years service in the feeder post. This is why by issuing an order on 07.08.2013 such a provision has been brought in. The inevitable conclusion is that this criterion cannot have retrospective operation and is prospective from the date of its issue. In the case in hand, there is mention both in resolution dated 18.09.2012 as well as the DPC resolution on 11.02.2013 that promotion to the rank of SAA will be determined on the basis of their inter-se-seniority position in the rank of JAA, save and except those who did not have the qualifying service of 5 years in the rank of JAA. Excluding the candidates from zone of consideration by the DPC on 11.02.2013 (Annexure-24 to the affidavit-in-opposition submitted by respondents No. 1, 2 and 3 on 05.08.2014) was impermissible as the requirement came into force only on 07.08.2013.
22. But the question arises as to whether nonexistence of 5 years' service in feeder post will ultimately tilt the result and were the cases of the petitioners really considered along with private respondents at the time of giving promotion. This is because, all the candidates having been graded by the DPC as "Good" and Page 26 of 28 WP(C) 4085/2013 WP(C) 4644/2013 "Fit for promotion" by the Committee of Judges in the resolution dated 18.09.2012 as well as the DPC on 11.02.2013, the promotion ultimately had to be on the basis of seniority only in terms of Rule 18. It is not the case of the present writ petitioners that some of their juniors have been promoted to the cadre of SAA. Had it been the case, in that event purported exclusion of the candidature of the petitioners for lack of 5 years' service in cadre of SAA would have been fatal as it would have tilted the decision. Here in this case, it appears that ultimately promotion has been given on the basis of seniority. If that is so, there is no real exclusion of the petitioners from consideration at all.
23. It is also to be noted that after the representation came up for consideration, the present petitioners were asked to give their response. Copy of the representation was available to the petitioners and the same has been annexed to the writ petition as well. Representation is exhaustive and it contains grounds on which the promotion of the present petitioners was challenged. The writ petitioners did not refute any of these grounds by filing a specific reply. The reply submitted by them was vague merely stating that they had been given promotion by competent authority on apprisal of their merit. The Committee thereafter perused the records and considered the individual ACRs. The findings of the Committee, therefore, cannot be said to be violative of the principles of natural justice. The finding of the Committee that promotion given to the juniors superseding the seniors on the basis of un-communicated ACRs also cannot be held to be wrong in view of the judgment of the Hon'ble Supreme Court in the case of Dev Dutt v. Union of India & ors. reported in (2008) 8 SCC 725. The Page 27 of 28 WP(C) 4085/2013 WP(C) 4644/2013 exercise made by the Committee to take a different view from the one reflected in the ACR is also valid in view of the law laid down by the in the case of UPSC v. Rajaiah & ors reported in (2005) 10 SCC 15. The Committee took into view the law laid down by Hon'ble Supreme Court in the case of Anil Katiyar v. Union of India reported in (1997) 1 SCC 280 to hold that it is for the DPC to grade the officers in consideration of the various entries made in the ACRs and DPC is not bound to follow the overall gradings in the ACRs. All these views are held in the light of the law laid down by the Apex Court and so, this court does not find any ground to interfere with the impugned orders.
24. The writ petitions are devoid of any merit and accordingly the same are dismissed. No order as to costs.
JUDGE BiswaS Page 28 of 28 WP(C) 4085/2013 WP(C) 4644/2013