Gauhati High Court
Jiten Malakar vs The State Of Assam And Ors on 28 April, 2014
Author: Ujjal Bhuyan
Bench: Ujjal Bhuyan
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND
ARUNACHAL PRADESH)
WRIT PETITION (C) NO.5673 OF 2010
Petitioner:
Sri Jiten Malakar,
Son of late Baliram Malakar,
Resident of 107,
Meghmallar Sparkle,
Mother Teressa Road,
South Byelane No.1,
Zoo Road Tiniali,
Guwahati-24.
By Advocates:
Mr. S. Sarma,
Mr. G. Goswami,
Ms. B. Devi,
Mr. H.K. Das.
Respondents :
1. State of Assam,
Represented by the Commissioner and Secretary,
Government of Assam,
Soil Conservation Department,
Dispur, Guwahati-6.
2. Under Secretary,
Government of Assam,
Soil Conservation Department,
Dispur, Guwahati-6.
3. Director (Reviewing Authority),
Soil Conservation Department,
Assam, Panyagar Bhawan,
5th Floor, Christian Basti,
G.S. Road, Guwahati-5.
4. Joint Director (Recording Authority),
Soil Conservation Department (Head Quarter),
Assam, Panyagar Bhawan,
5th Floor, Christian Basti,
G.S. Road, Guwahati-5.
5. Dr. Prem Saran,
Commissioner and Secretary to the Government of Assam,
Soil Conservation Department, (Accepting Authority)
Dispur, Guwahati-6.
By Advocate:
Ms. N. Goswami, G.A. Assam.
W P (C)N o.5673/ 2010 P age 1 of 19
W P (C) N o.6317/ 2010
WRIT PETITION (C) NO.6317 OF 2010
Petitioners:
1. Sri Sibananda Choudhury,
Son of late Hema Kanta Choudhury,
Divisional Soil Conservation Officer (Planning),
Habubari, Kokrajhar,
PO & District- Kokrajhar, Assam.
2. Sri Prunaswar Saikia,
Son of late Baneswar Saikia,
Divisional Soil Conservation Officer,
Darrang Soil Conservation Division,
Mangaldoi, Karimchak, Mangaldoi,
Assam.
By Advocates:
Mr. S.C. Keyal,
Mr. S.K. Ghosh,
Mr. S.P. Choudhury.
Respondents :
1. State of Assam,
Through the Commissioner and Secretary
to the Government of Assam,
Department of Soil Conservation,
Dispur, Guwahati-6.
2. Director of Soil Conservation,
Assam, Amaravati Road,
Christianbasti, Guwahati-5,
Assam.
3. Selection Committee,
Through its Member Secretary who is
the Director of Soil Conservation, Assam,
Amaravati Road,
Christianbasti, Guwahati-5,
Assam.
4. Md. ABMT Hussain,
Divisional Soil Conservation Officer,
South Bank Soil Conservation Division,
Uzan Bazar,
Guwahati-1, Assam.
5. Sri EP Marak,
Divisional Officer,
Kohora Soil Conservation Division, Kohora,
PO- Kaziranga Sanctuary, Karbi Anglong,
Assam.
W P (C)N o.5673/ 2010 P age 2 of 19
W P (C) N o.6317/ 2010
6. Sri C.R. Das,
Planning Officer,
Office of the Director Soil Conservation,
Christian Basti,
Guwahati-781005.
7. Assam Public Service Commission,
Khanapara, Guwahati-22,
(represented by its Chairman).
By Advocates:
Mr. B. Gogoi, SC, Soil Conservation Department,
Mr. B. Singha for APSC,
Mr. K.H. Choudhury, Sr. Advocate,
Mr. G. Uzir.
BEFORE
HON'BLE MR. JUSTICE UJJAL BHUYAN
Date of hearing : 31-10-2013.
Date of Judgment :28-04-2014.
J U D G M E N T AND O R D E R (CAV)
The issues raised in both the writ petitions i.e. WP(C)
No.5673/2010 and 6317/2010 being inter-related, those were heard
together and are being disposed of by this common order.
2. Facts of both the cases may be briefly setout at the outset.
WP(C) No.5673/2010
3. Petitioner Shri Jiten Malakar is presently serving as
Divisional Soil Conservation Officer in the Soil Conservation
Department, Government of Assam. According to the petitioner, he has
a distinguished service career till date. Petitioner belongs to the
Scheduled Caste community.
W P (C)N o.5673/ 2010 P age 3 of 19
W P (C) N o.6317/ 2010
4. By letter dated 16-09-2010, Under Secretary to the
Government of Assam, Soil Conservation Department issued a
communication to the petitioner informing him that an adverse remark
was recorded in his Annual Confidential Report (ACR) for the year
2009-10 by the reviewing and accepting authorities. The adverse
remarks were as under:-
"Doubtful integrity, unruly, abusive behaviour and
misconduct and can't be recommended for higher post".
Petitioner was informed that in case he wanted to make any
representation against the adverse remarks, he could submit the same
to the Government within seven days from the date of receipt of the
communication.
5. Petitioner submitted an application dated 24-09-2010
before the respondent No.1 requesting the said authority to furnish
him the materials on which the adverse remarks were based and
thereafter to grant him reasonable time for preparing an effective
representation. Petitioner was informed by the Under Secretary vide
letter dated 28-09-2010 that the reviewing officer has the inherent
authority to make appropriate entries in the ACR of his subordinates.
Petitioner was however allowed three additional days to make a
representation, if he so desired, before the Government. Petitioner
thereafter submitted an appeal dated 01-10-2010 to the Chief
Secretary to the Government of Assam with intimation to the
respondent No.1 requesting the Chief Secretary to review the adverse
remarks and to expunge the said entry. Subsequent thereto, the Under
Secretary forwarded to the petitioner vide his letter dated 06-10-
W P (C)N o.5673/ 2010 P age 4 of 19
W P (C) N o.6317/ 2010
2010 a copy of his ACR for the year 2009-10. As per the ACR, the
reporting authority (Joint Director of Soil Conservation) had recorded
as follows against the integrity column :-
"Reliable, nothing against his integrity".
When the ACR was placed before the reviewing authority (Director of
Soil Conservation), he recorded the adverse entry as already noted
above. Though there is a column for grading, petitioner was not given
any grading. When the ACR was placed before the accepting authority
(Commissioner and Secretary, Soil Conservation Department), he
simply remarked that he agreed with the recording and reviewing
authorities.
6. Aggrieved, petitioner has filed the present writ petition for
quashing of the impugned communication dated 16-09-2010
(Annexure-2 to the writ petition) and for expunging the adverse entry
in his ACR for the year 2009-10. Petitioner further seeks a direction to
the respondents to consider his case for promotion to the next higher
post of Joint Director without taking into account the adverse entry
recorded in his ACR for the year 2009-10.
7. Contention of the petitioner is that recording of such
adverse entry in his ACR for the year 2009-10 was not justified. When
the reporting authority had made the assessment that petitioner is
reliable with nothing against his integrity, the reviewing authority
could not have made the adverse entry without giving any justification
as to why he did not agree with the views of the reporting authority.
Petitioner has also alleged bias against the accepting authority.
W P (C)N o.5673/ 2010 P age 5 of 19
W P (C) N o.6317/ 2010
Further contention of the petitioner is that he is eligible for promotion
to the next higher post of Joint Director but such adverse entry would
cause serious prejudice to the case of the petitioner.
WP(C) No.6317/2010
8. This petition has been filed by two petitioners, viz., Shri
Sibananda Choudhury and Shri Prunaswar Saikia. During the
hearing, it was submitted by learned Counsel for the petitioners that
petitioner No.2 has retired from service on attaining the age of
superannuation. Thereafter, the writ petition is being pursued by
petitioner No.1 only. Hence, reference would be made to the case of
petitioner No.1 only as the petitioner.
9. Petitioner is serving as Divisional Soil Conservation Officer
in the Soil Conservation Department, Government of Assam. In the
gradation list of Divisional Soil Conservation Officers (Divisional Officer
hereafter), petitioner is placed at Sl. No.2 and he is second in senior
only to Md. ABMT Hussain (respondent No.4).
10. Government of Assam in the Soil Conservation
Department has framed a set of draft rules called Assam Soil
Conservation Department (Recruitment and Promotion to Service)
Order, 1988 (hereinafter referred to as Order). Post of Joint Director is
a promotional post to be filled up by promotion from the feeder cadre
of Divisional Officer. Cadre strength of Joint Director is three and all
the three posts are lying vacant.
W P (C)N o.5673/ 2010 P age 6 of 19
W P (C) N o.6317/ 2010
11. On 24-08-2009 a meeting of the Selection Committee was
held to consider selection for promotion to the rank of Joint Director
from the rank of Divisional Officer. At that point of time, the cadre
strength of Joint Director was four, which was subsequently reduced
to three. Selection Committee recommended eight numbers of
Divisional Officers for promotion to the rank of Joint Director. The first
four candidates of the recommended list were all reserve category
candidates belonging to Scheduled Caste and Scheduled Tribe (Hills)
as they were recommended against backlog vacancies. Further,
recommendation of respondent No.4 at Sl.No.5 was kept in sealed
cover in view of pendency of vigilance case against him. Petitioner was
recommended at Sl.No.6.
12. The above selection was put to challenge before this Court
by the petitioner by filing WP(C) No.4099/2009. The basic challenge
made was the recommendation of four reserve category candidates
against all the four vacancies on the ground of there being backlog
vacancies. WP(C) No.4099/2009 was finally disposed of by this Court
vide the judgment and order dated 29-06-2010 by interfering with the
decision of the Selection Committee dated 24-08-2009 in respect of
promotion to the rank of Joint Director. The said decision was
quashed and the matter was remanded back to the Government to re
do the exercise in terms of the directions contained in the said
judgment.
13. Without carrying out the exercise as directed by this Court
in the above judgment, a Selection Committee was again constituted
which met on 07-10-2010 to consider selection for promotion to two
W P (C)N o.5673/ 2010 P age 7 of 19
W P (C) N o.6317/ 2010
vacancies in the post of Joint Director for the year 2009 and one
vacancy for the year 2010. As against the two vacancies for the year
2009, the Selection Committee recommended respondent No.5 as a
Scheduled Tribe (Hills) [ST(H)] candidate and respondent No.6 as a
Scheduled Caste (SC) candidate by considering the two vacancies to be
the 22nd and 23rd points in the roster. According to the Selection
Committee, the 22nd roster point is unreserved whereas the 23rd roster
point is reserved for SC. As there were backlog vacancies, the Selection
Committee decided to fill up the first vacancy by Shri Jiten Malakar
(SC). Since the ACR of Shri Jiten Malakar for the year 2009-10
contained adverse remarks, he was not recommended. Consequently,
respondent No.5 was recommended against the said vacancy.
Respondent No.6 was recommended against the next vacancy being an
SC candidate. Against the lone vacancy for the year 2010, as there
were no reserve category candidates, respondent No.4, a general
category candidate placed at Sl.No.1 in the zone of consideration, was
recommended.
14. Aggrieved, petitioner has filed the present writ petition for
quashing the decision of the Selection Committee dated 07-10-2010
and for a direction to the respondents to consider the case of the
petitioner for promotion to the post of Joint Director.
15. Contention of the petitioner is that the Selection
Committee is to comprise of three members as per Order 9 but the
Selection Committee which took the decision on 07-10-2010 consisted
of four members. Thus, the selection process stood vitiated because of
participation of unauthorized person. Further contention is that
W P (C)N o.5673/ 2010 P age 8 of 19
W P (C) N o.6317/ 2010
respondents had erred in proceeding on the basis that the three
vacancies in the post of Joint Director which the Selection Committee
was considering were the 22nd, 23rd and 24th points in the roster.
There cannot be reservation in a cadre consisting of three posts only.
Thus the Selection Committee erred in recommending two reserve
category candidates i.e. respondent Nos. 5 and 6 for promotion to the
post of Joint Director. In so far recommendation of respondent No.4 is
concerned, it is the stand of the petitioner that since a vigilance case is
pending against him, sealed cover procedure was required to be
followed, which was in fact followed in the previous selection
proceeding. That having not been done, recommendation of
respondent No.4 is illegal.
AFFIDAVITS
16. In WP(C) No.5673/2010, affidavit has been filed by
respondent No.2 wherein it is stated that adverse entry recorded by
the reviewing authority in the ACR of the petitioner for the year 2009-
10 is justified. Reference has been made to various schemes of the Soil
Conservation Department implemented through the petitioner but it is
contended that his performance was found to be far from satisfactory.
Not only that, his behaviour and conduct was very poor. It is further
stated that petitioner was behind lodging of false public complaints
against certain officials of the Department. It is however admitted that
petitioner has submitted an appeal before the Chief Secretary against
recording of adverse entry in his ACR. Further stand taken is that the
State Government in the Soil Conservation Department has initiated
the process of drawing up a disciplinary proceeding against the
petitioner under Rule 9 of the Assam Services (Discipline and
W P (C)N o.5673/ 2010 P age 9 of 19
W P (C) N o.6317/ 2010
Appeal) Rules, 1964. In paragraph 14 of the affidavit, it is stated that
adverse remarks were recorded by the reviewing authority on the basis
of the performance of the petitioner in respect of which enquiry was
conducted and enquiry report submitted. Allegation of bias against
respondent No.5 has been denied. Departmental Selection Committee
held a meeting on 07-10-2010 to consider promotion from Divisional
Officer to Joint Director in terms of order of this Court dated 29-06-
2010 passed in WP(C) No.4099/2009.
17. Petitioner has filed a detailed reply affidavit controverting
the contentions of respondent No.2 that his performance and
behaviour were very poor. He has given details of his performance in
the implementation of various schemes to contend the contrary.
Referring to the provisions of Assam Services (Confidential Rolls)
Rules, 1990 he contends that if the reviewing and accepting authority
disagree with the assessment of the reporting authority, reasons must
be recorded in writing for such disagreement. In the instant case, no
reasons were recorded when the reviewing authority disagreed with the
assessment of the reporting authority and recorded adverse entry.
Since petitioner was not given any opportunity to have his say in the
recording of adverse entry in his ACR, the same could not have been
taken into account by the Selection Committee.
18. An additional affidavit has been filed by the petitioner
after filing of the reply affidavit. It is stated that a show cause notice
dated 09-05-2011 was issued to the petitioner under Rule 7 of the
Assam Services (Discipline and Appeal) Rules, 1964 on the
allegations referred to in the counter affidavit. Enquiry was conducted
W P (C)N o.5673/ 2010 P age 10 of 19
W P (C) N o.6317/ 2010
to enquire into the charges leveled against the petitioner. The Enquiry
Officer in his enquiry report dated 27-06-2013 held that the charges
were not proved. Thereafter, the disciplinary authority issued
notification dated 20-07-2013 closing the disciplinary proceeding
drawn up against the petitioner. Petitioner contends that since the
basis of the adverse entry in his ACR and initiation of disciplinary
proceeding against him were the same, closure of the disciplinary
proceeding should lead to erasement of such adverse entry as the
latter has become nonest in the eye of law. In such circumstances,
respondents should hold a review DPC to reconsider the case of the
petitioner for promotion to the rank of Joint Director.
19. In WP(C) No.6317/2010, an affidavit has been filed by
respondent No.1. It is stated that three posts of Joint Director are now
vacant. Selection Committee was constituted to consider promotion
from Divisional Officer to Joint Director as per provisions of draft order
in the absence of any service rules. It is stated that earlier Selection
Committee had recommended four candidates for promotion to Joint
Director, all belonging to reserve category, since at that time the cadre
strength of Joint Director was four which has since been reduced to
three. The above selection was set aside by this Court vide judgment
and order dated 29-06-2010 passed in WP(C) No.4099/2009 with a
direction to reconsider the same within three months. As per direction
of this Court, Selection Committee held its meeting on 07-10-2010. It
is stated that for the year 2009 there were two vacancies and for the
year 2010 there was one vacancy. The Selection Committee observed
that there were backlog vacancies of reserve category. Though name of
Shri Jiten Malakar, an SC candidate [petitioner in WP(C)
W P (C)N o.5673/ 2010 P age 11 of 19
W P (C) N o.6317/ 2010
No.5673/2010] was considered, because of adverse remark in his ACR
for the year 2009-10, he was not found suitable. Accordingly,
respondent No.5, an ST(H) candidate, and respondent No.6, an SC
candidate, were recommended. Against the lone vacancy for the year
2010, respondent No.4 who was placed at Sl.No.1 in the zone of
consideration and as there were no reserve category candidates, he
was recommended. Selection Committee took note of the fact that
though a vigilance case was pending against respondent No.4 but no
prosecution sanction had been granted.
20. Respondent No.4 has also filed affidavit. He has stated
that he is the senior most Divisional Officer as per final gradation list.
For the year 2010 there was only one vacancy in the rank of Joint
Director. There were four officers within the zone of consideration with
the respondent No.4 in the first position and the petitioner in the
second position. There were no reserve category candidates within the
zone of consideration. Selection Committee therefore recommended
respondent No.4 for promotion to the vacant post of Joint Director. As
per the minutes of the Selection Committee meeting, though there was
a vigilance case pending against the respondent No.4 as intimated by
the Political (Vigilance) Department, Government of Assam, no
prosecution sanction had been granted. Therefore, there was no bar
for recommendation of respondent No.4. Regarding presence of four
members in the Selection Committee as against three in terms of the
service Order, it is stated that no dissenting views were expressed by
any of the members and, therefore, participation of an additional
member in the proceedings of the Selection Committee did not have
any adverse bearing on the recommendation.
W P (C)N o.5673/ 2010 P age 12 of 19
W P (C) N o.6317/ 2010
COURT ORDER
21. In WP(C) No.5673/2010, this Court by order dated 07-10-
2010 had issued notice and as an interim measure directed that the
process of selection for filling up the post of Joint Director may
continue but the said post should not be filled up without the leave of
the Court.
SUBMISSIONS
22. Mr. S. Sarma, learned Counsel for the petitioner in WP(C)
No.5673/2010 submitted that as has been held by the Apex Court,
purpose of recording adverse entry in the service record of a
Government servant is two fold. Firstly, it is to warn the Government
servant about his performance and conduct as assessed by the
authority. Secondly, it is meant to motivate the Government servant to
improve his performance. It is to achieve the twin purpose that the
adverse entry must be communicated to the petitioner and he should
be given an opportunity to submit a representation against recording
of such adverse entry. Coming to the facts of the present case, learned
Counsel for the petitioner submits that without considering the appeal
of the petitioner against recording of adverse entry, his case was
placed before the Selection Committee which rejected his candidature
for promotion to the post of Joint Director in view of such adverse
entry. He further submits that the basis of recording the adverse entry
and drawal of disciplinary proceeding against the petitioner were the
same set of allegations. Since Enquiry Officer had held that the
charges framed against the petitioner were not proved and the
disciplinary authority having accepted the enquiry report and closed
the disciplinary proceeding drawn up against the petitioner, the
W P (C)N o.5673/ 2010 P age 13 of 19
W P (C) N o.6317/ 2010
adverse entry recorded in the ACR of the petitioner for the year 2009-
10 must be taken to have been wiped out. In this connection, learned
Counsel refers to and relies upon the decision of the Apex Court in the
case of Chabungbam Ibohal Singh -Vs- Union of India reported in
1995 Supp.(2) SCC 83. He therefore submits that authorities may be
directed to hold review DPC to consider promotion to the post of Joint
Director after expunging the adverse entry recorded in the ACR of the
petitioner for the year 2009-10.
23. Mr. S.K. Ghosh, learned Counsel for the petitioner in
WP(C) No.6317/2010 submitted that the Selection Committee which
made the impugned recommendation on 07-10-2010 comprised of four
members which was beyond the prescribed number as per Order 9.
Participation of such an unauthorized person in the proceedings of the
Selection Committee vitiated the recommendations made. His further
submission is that there was excess reservation for reserve category
candidates. As a matter of fact there cannot be reservation to a post
where the total cadre strength is four or less. Therefore,
recommendation of respondent Nos. 5 and 6 for promotion to the post
of Joint Director where the total cadre strength is three is illegal. In
support of this submission, learned Counsel for the petitioner has
placed reliance in a decision of this Court in the case of Khanindra
Nath Choudhury -Vs- State of Assam and others reported in 2007
(4) GLT 587. His last submission is that respondent No.4 could not
have been recommended for promotion as there is a vigilance case
pending against him. Therefore, as was done in the previous Selection
Committee meeting, sealed cover procedure ought to have been
W P (C)N o.5673/ 2010 P age 14 of 19
W P (C) N o.6317/ 2010
followed in the case of respondent No.4 during the impugned Selection
Committee proceeding.
24. Mr. K.H. Choudhury, learned Senior Counsel appearing
for respondent No.4 in WP(C) No.6317/2010 submitted that his client
is the senior most in the cadre of Divisional Officer. Though a
Departmental Proceeding was initiated against him, he was exonerated
from the charges on 14-11-2002. On the day the Selection Committee
considered his case for promotion, sanction had not been granted for
prosecution of respondent No.4 in the vigilance case. Though he fairly
admitted that prosecution sanction was subsequently granted in the
year 2012, selection of respondent No.4 would have to be judged on
the basis of materials which existed on the day of selection.
25. Mr. G. Uzir, learned Counsel for respondent No.5 also
fairly submitted that though respondent No.5 was recommended for
promotion to the post of Joint Director against backlog vacancy of
ST(H), he has no objection to promotion of the petitioner. He further
submits that respondent No.5 is also not averse to a fresh selection in
which case the vacancies should be notified, giving breakup of the
categories, whether general or reserve.
26. Learned Standing Counsel for the Soil Conservation
Department supports the action taken by the respondents against the
petitioner in WP(C) No.5673/2010 as well as the proceedings of the
Selection Committee dated 07-10-2010, which is impugned in WP(C)
No.6317/2010.
W P (C)N o.5673/ 2010 P age 15 of 19
W P (C) N o.6317/ 2010
DISCUSSIONS AND CONCLUSION
27. Submissions made have been considered.
28. Since the out come of WP(C) No.5673/2010 may have a
bearing on WP(C) No.6317/2010, WP(C) No.5673/2010 is taken up
first for consideration.
29. The law relating to recording of adverse entry in the
confidential reports of a Government servant has by now crystallized.
This issue was gone into in detail by the Supreme Court in Dev Dutt
-Vs- Union of India and others reported in (2008) 8 SCC 725, which
has been affirmed by a larger bench in a subsequent case. It was held
that every entry in the ACR of a public servant must be communicated
to him within a reasonable period. When the entry is communicated to
the public servant, he should have a right to make a representation
against the entry which must be decided in a fair manner and within a
reasonable period. The Apex Court further held that in the interest of
fairness and transparency, the representation so submitted should be
decided by an authority higher than the one who gave the entry. It was
held thus :-
"(17). In our opinion, 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 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)
W P (C)N o.5673/ 2010 P age 16 of 19
W P (C) N o.6317/ 2010
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
that arbitrariness violates Article 14 of the Constitution.
*****************************************************************
(37). We further hold that when the entry is communicated to him the public servant should have a right to make a representation against the entry to the authority concerned, and the authority concerned must decide the representation in a fair manner and within a reasonable period. We also hold that the representation must be decided by an authority higher than the one who gave the entry, otherwise the likelihood is that the representation will be summarily rejected without adequate consideration as it would be an appeal from Caesar to Caesar. All this would be conducive to fairness and transparency in public administration, and would result in fairness to public servants. The State must be a model employer, and must act fairly towards the employees. Only then would good governance be possible."
30. Having noticed the above, we may now turn to the facts of the present case. From a perusal of the ACR of the petitioner for the year 2009-10, it is seen that the reporting authority recorded against the column character with particulars to reliability and integrity as "reliable, nothing against his integrity". The reviewing authority W P (C)N o.5673/ 2010 P age 17 of 19 W P (C) N o.6317/ 2010 however recorded the remark "doubtful integrity, unruly, abusive behaviour and misconduct and can't be recommended for higher post". Thus, it is quite evident that the reviewing authority had disagreed with the assessment of the reporting authority but no reason or justification has been cited for such disagreement. Moreover, though there is a column for giving grading, the reviewing authority did not give any grading to the petitioner. When the ACR was placed before the accepting authority, he simply stated "agreed with recording and reviewing officers". The assessment of the reporting (recording) and reviewing authorities being divergent, with the reviewing authority disagreeing with the assessment of the reporting authority, the accepting authority could not have agreed with the assessment of both the reporting (recording) officer and the reviewing officer. This reflects non-application of mind by the accepting authority. It is further on record that petitioner had submitted an appeal dated 01-10-2010 before the Chief Secretary to the Government of Assam against the adverse entry recorded in his ACR for the year 2009-10. Following the decision in Dev Dutt (Supra), the appeal was rightly made before the Chief Secretary being an authority higher than the reviewing and accepting authorities. But the said authority was required to dispose of the appeal in a fair manner and within a reasonable period. More than three years have passed since the petitioner had submitted his appeal but the State respondents could not place any material before the Court to show that the said appeal of the petitioner was attended to by the Chief Secretary and decision taken thereon.
31. Thus in the facts and circumstances of the case, Court is of the view that it would meet the ends of justice if the Chief Secretary W P (C)N o.5673/ 2010 P age 18 of 19 W P (C) N o.6317/ 2010 to the Government of Assam takes a decision on the appeal filed by the petitioner on 01-10-2010 against recording of adverse entry in his ACR for the year 2009-10 within a period of two months from the date of receipt of a copy of this order. The Selection Committee should be reconvened within a period of one month from the date of the decision of the Chief Secretary and whatever decision is arrived at by the Chief Secretary, the same should be communicated to the petitioner as well as to the Selection Committee who shall thereafter consider the cases of all eligible Divisional Officers coming within the zone of consideration for promotion to the rank of Joint Director.
32. Ordered accordingly. Consequently, proceedings of the Selection Committee dated 07-10-2010 are quashed.
33. In view of the decision rendered in WP(C) No.5673/2010 as above, the Court is of the view that no decision on merit is called for in WP(C) No.6317/2010 save and accept that the fresh Selection Committee shall consider the cases of all the eligible candidates strictly in accordance with law within the period prescribed.
34. Both the writ petitions are accordingly disposed of.
35. No cost.
JUDGE
aparna
W P (C)N o.5673/ 2010 P age 19 of 19
W P (C) N o.6317/ 2010