Madras High Court
P.Sundararaj vs The Chairman And on 21 September, 2012
Author: T. Raja
Bench: T. Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 21.09.2012
CORAM
THE HONOURABLE MR. JUSTICE T. RAJA
W.P.No.37416 of 2002
P.Sundararaj .. Petitioner
vs.
The Chairman and
Managing Director,
Tamil Nadu Small Industries
Corporation Limited,
Guindy,
Chennai 32. .. Respondent
Writ petition filed under Article 226 of the Constitution of India, praying this Court for issuance of Writ of Certiorarified Mandamus to call for the records in reference No.18753/EE2/2002-1, dated 03.04.2002, quash the same and consequently, direct the respondent to promote the petitioner as Grade-I Foreman with effect from the date on which, his junior was promoted with all attendant benefits.
For Petitioner ... Mr.A.Immanuel
For Respondent ... Mr.Sanjay Gandhi
ORDER
The writ petition has been filed by the petitioner P.Sundararaj challenging the impugned order passed by the respondent, Chairman and Managing Director, Tamil Nadu Small Industries Corporation Limited, Guindy, Chennai in reference No.18753/EE2/2002-1, dated 03.04.2002 to quash the same and consequently, direct the respondent to promote the petitioner as Grade-I Foreman with effect from the date on which, his junior was promoted with all attendant benefits.
2.The case of the petitioner is that the petitioner had joined in TANSI Limited as Grade II Foreman on 06.02.1980. On completion of 20 years of service, the petitioner was awarded with Special Grade on 06.02.2000. Two years later, the respondent in his proceedings dated 31.01.2002 has released a list of Special Grade II Foreman to be included in the panel for Grade I Foreman, wherein, the name of the petitioner was in Serial No.5. But, the petitioner's name was not considered for promotion due to the adverse remarks made in the confidential report. Therefore, the petitioner has submitted a representation dated 12.03.2002 stating that he has not faced any disciplinary action in his career, hence, requested the respondent to promote him as Grade I Foreman. But, the respondent has rejected the representation of the petitioner and passed the impugned order in reference No.18753/EE2/2002-1, dated 03.04.2002 stating that the promotion of the petitioner as Foreman Grade I was withheld based on the adverse remarks entered in the confidential report. Challenging the same, the writ petition has been filed by the petitioner.
3.The learned counsel for the petitioner has submitted that when there is no provision in TANSI Service Rules to withhold the promotion of an employee, based on records of poor performance or based on the records of adverse remarks in the confidential report, the respondent can not pass any adverse order against the petitioner. When the TANSI Service Rules do not mention anything regarding the satisfactory performance or evaluation/appraisal provision for withholding the promotion, the non consideration of the petitioner to the promotional post of Foreman Grade I, only on the basis of the adverse remarks that the petitioner's integrity is unsatisfactory, is absolutely unfair and unsustainable.
4.It was further submitted that the petitioner was neither issued with any Charge Memo nor faced any disciplinary action and the respondent also did not pass any adverse order against the petitioner. When the petitioner was not put to any adverse entries, it is not open to the respondent to deny promotion merely on the ground that the Superior Officer has recorded unsatisfactory remarks on his integrity in ACRS and Performance Reports.
5.In support of the argument, the learned counsel for the petitioner has relied upon the decision of the Hon'ble Apex Court in S.B.BHATTACHARJEE VS. S.D.MAJUMDAR AND OTHERS (2007) 10 SCC 513) wherein, it has been held as follows:
"It has not been denied or disputed that in a given case ACRs of an eligible candidate may not be written and, thus may not be available. If the same is available, a notice in that behalf must be given, in the event, any exigency arises therefor to the affected officer and only upon consideration of the representation made by him, if any, the decision taken in that behalf by the reviewing authority shall be final. The ACR by immediate superior, thus, is not final or determinative, as the same would be subject to the decision of the reviewing authority.
DPC is required to consider the service records, with particular reference to the ACRs for five preceding years. The ACRs for "five preceding years" must, therefore, be held to mean "five preceding years" of ACRs which have attained finality.
"Although a person has no fundamental right of promotion in terms of Article 16 of the Constitution of India, he has a fundamental right to be considered therefor. An effective and meaningful consideration is postulated thereby".
6.Relying upon the above said decision, the learned counsel has submitted that the Departmental Promotion Committee in its proceedings is bound to follow the service records and the reference to ACRs for five preceding years only.
7.He has also relied on yet another decision in PAWAN N.CHANDRA VS. RAJASTHAN HIGH COURT AND ANOTHER (2009) 17 SCC 770) and argued that sweeping adverse remarks made in annual confidential report casting doubt on his integrity, impartiality and capacity to work cannot be treated as justified.
8.In reply, the learned counsel for the respondent has pleaded that the case of the petitioner is required to be rejected in limine, since the Departmental Promotion Committee had taken due care to assess the comparative merit of the individual's empanelment for promotion and after careful consideration of the assessed individual merit on the basis of confidential reports and performance reports, the respondent has rejected the promotion of the petitioner.
9.It was further submitted by the learned counsel for the respondent that the ACRS and the Performance Reports clearly reveal the fact that the Statutory Officer had given performance of the petitioner as "barely adequate" and integrity as "unsatisfactory". Subsequently, the petitioner was communicated about the entries of the adverse remarks made in ACR in Memo No.18753/2001, dated 2.1.2002 by the respondent. In response to the said communication, the petitioner has also submitted his detailed representation to the respondent on 12.3.2002. After considering the said representation given by the petitioner, the respondent had rejected the petitioner's representation stating that it has no merit and substance. Therefore, it is not open to the petitioner to make a wrong submission before this Court that he was not communicated about the entries of adverse remarks made in ACRS and Performance Report. In the minutes of the meetings of D.P.C held on 3.1.2003, it is stated that the Committee has considered the case of the petitioner along with two other persons viz., P.Sehik Dawood and R.Chandra Mohan for promotion to the post of Foreman Grade I and after proper deliberations on the records and all the service records of ACRS and Performance, it has categorically submitted that the above said persons were not given proper weightage for considering promotion to the post of Foreman Grade I. Though the name of the petitioner is in Serial No.5 in the panel for promotion to the post of Foreman Grade I, in view of the minutes of the meetings of D.P.C held on 3.1.2003, 26 persons were selected among 29 persons and only the three persons including the petitioner were finally found ineligible on considering ACRS and Performance Reports of three persons, viz., P.Soundararaj, the petitioner, P.Sehik Dawood and R.Chandra Mohan for adverse remarks. When the Chairman and Managing Director, Tamil Nadu Small Industries Corporation Limited in his proceedings No.18753/EE.2/01-1, dated 11.1.2002 has stated that the Departmental Promotion Committee had taken due care to assess the comparative merit of the individuals empanelled for promotion and after careful consideration, assessed the individual merit on the basis of Confidential reports and performance reports etc., that out of 29 persons, only 3 above mentioned persons are not suitable for promotion, it is not proper for the petitioner to allege that the petitioner was not informed of his adverse remarks. It is well settled that the D.P.C cannot be expected to give a detailed report with elaborate reasons as to why the promotion is recommended or not.
10.The ratio laid down by the Apex Court in S.B.BHATTACHARJEE VS. S.D.MAJUDDAR AND OTHERS (2007) 10 SCC 513) clearly shows that merit and suitability of the candidates concerned are the primary consideration for promotion to a selection post. While so, the Departmental Promotion Committee, which is assigned to select the suitable candidates, is required to consider service records, with particular reference to the ACRs for five preceding years, who have attained finality.
11.In the present case, after entering the adverse remarks in the petitioner's ACR, the Superintendent of the respondent Corporation has communicated the same to the petitioner by the letter dated 2.1.2002. In response to that, the petitioner has also submitted his representation dated 12.3.2002. Subsequently, when the adverse remarks attained finality, the said representation of the petitioner was considered by the Departmental Promotion Committee. Therefore, the said decision in S.B.BHATTACHARJEE VS. S.D.MAJUDDAR AND OTHERS (2007) 10 SCC 513) will apply to the case of the respondent, but not to the petitioner.
12.In yet another decision in PAWAN N.CHANDRA VS. RAJASTHAN HIGH COURT AND ANOTHER (2009) 17 SCC 770), the Apex Court while dealing with the case of the Judicial Officers has held that the sweeping adverse remarks made in the annual confidential report of the candidate for particular year, casting doubt on his integrity and impartially and capacity to work cannot be treated as justified since the same was primarily based on the complaints made, whose bail applications were rejected by the said officer.
13.But, in the present case, the facts are different. As I mentioned above after recording the adverse remarks in his ACR, the same was also communicated to the petitioner. Aggrieved by the same, a representation made by the petitioner was also considered and thereby, the adverse entries reached finality. On the above said basis, the Departmental Promotion Committee has rightly rejected the representation of the petitioner. Therefore, the petitioner cannot have any grievance. Hence, I am of the opinion that this Court cannot substitute its view in the place of administrative decision taken by the Departmental Promotion Committee. Further, when the Departmental Promotion committee has properly considered the case of the petitioner that the petitioner and two others are not suitable for promotion, this Court cannot interfere with the impugned order passed by the respondent.
14.Hence, the writ petition is dismissed. There is no order as to costs.
cla To The Chairman and Managing Director, Tamil Nadu Small Industries Corporation Limited, Guindy Chennai 32