Tripura High Court
Sri Suresh Chandra Das vs The State Of Tripura on 29 January, 2018
Author: S. Talapatra
Bench: S. Talapatra
THE HIGH COURT OF TRIPURA
AGARTALA
W.P.(C) No.55 of 2015
Sri Suresh Chandra Das,
son of late Sadhan Chandra Das,
Lichu Bagan, Agartala Municipal Corporation,
Ward No.2, P.O. New Secretariat Complex,
P.S. New Capital Complex, Kunjaban Agartala,
District : West Tripura, PIN : 799006
............Petitioner
- Vs -
1. The State of Tripura,
to be represented by the Chief Secretary to the
Government of Tripura, Civil Secretariat, New Secretariat
Complex, Kunjaban, P.O. Kunjaban, Agartala,
P.S. New Capital Complex, Agartala,
District: West Tripura, PIN:799006
2. The Secretary-in-Charge,
of the General Administration
(Personal & Training Department),
Government of Tripura, Civil Secretariat,
New Secretariat Complex, Kunjaban, P.O. Kunjaban,
Agartala, P.S. East Agartala,
District: West Tripura, PIN:799006
3. The Secretary-in-Charge,
Department for Welfare of Schedule Tribes,
Government of Tripura, Civil Secretariat,
New Secretariat Complex, Kunjaban, P.O. Kunjaban,
Agartala, P.S. East Agartala,
District: West Tripura, PIN: 799006
4. The Secretary-in-Charge,
Department for Welfare of Schedule Castes,
OBCs & Minorities,Government of Tripura,
Civil Secretariat,New Secretariat Complex,
Kunjaban, P.O. Kunjaban,
Agartala, P.S. East Agartala,
District: West Tripura, PIN: 799006
5. The Secretary-in-Charge,
Revenue Department of the
Government of Tripura
Civil Secretariat, New Secretariat Complex,
Kunjaban, P.O. Kunjaban,
Agartala, P.S. East Agartala,
Page 1 of 26
WP(C) 55 of 2015
District: West Tripura, PIN: 799006
6. The Tripura Public Service Commission,
Old Secretariat Building, Agartala, P.O. Agartala,
District : West Tripura, PIN : 799001
7. Sri Swapan Saha (Ex-IAS),
Ex Secretary, Revenue Department,
Government of Tripura, Ramkrishna Bhavan,
East Shibnagar, College Road Extension,
P.O. Agartala College, P.S. East Agartala,
District : West Tripura, PIN : 799004
8. Sri Santanu Das (IAS),
Secretary, SC , OBC & Minority Welfare,
Government of Tripura, Now Secretary to the
Governor of Tripura, Governor's Secretariat,
Rajbhawan, Kunjaban, Agartala, P.O. Kunjaban,
West Tripura, PIN : 799006
9. The D.M. & Collector,
Dhalai District, Ambassa,
P.O. Ambassa, P.S. Ambassa,
District : Dhalai, PIN : 799289
10. Sri Kiran Gitte (IAS),
Ex- DM & Collector,
Dhalai District & West Tripura District,
care of GA (P&T) Department,
Government of Tripura,
Civil Secretariat, New Secretariat Complex,
Kunjaban, P.O. Kunjaban, Agartala,
P.S. East Agartala,
District: West Tripura, PIN: 799006
11. The DM & Collector,
West Tripura District,
Agartala, P.O. Agartala, P.S. West Agartala,
District : West Tripura, PIN : 799001
12. Sri R.P. Datta, Addl. Secretary, GA
(P&T) Department, Government of Tripura,
Civil Secretariat, New Secretariat Complex,
Kunjaban, P.O. Kunjaban, Agartala, P.S. East Agartala,
District : West Tripura, PIN : 799006
13. Sri Pranesh Lal Chakma,
ADM & Collector, Gomati District,
Udaipur, P.O. R.K. Pur,
P.S. R.K. Pur, District: Gomati, PIN: 799120
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WP(C) 55 of 2015
14. Sri Shyamal Chakraborty,
District Panchayat Officer,
West Tripura District,
Old Secretariat Complex,
Agartala, P.O. Agartala,
P.S. West Agartala,
District: West Tripura, PIN:799001
15. Sri Gopika Ranjan Das,
ADM & Collector,
Unakoti District,Kailashahar,
P.O. Gournagar, P.S. Kailashahar,
District: Unakoti, PIN: 799277
16. Sri Meghanad Chakma,
Sr. Deputy Collector,
office of the DM & Collector,
West Tripura District,
Agartala, P.O. Agartala,
P.S. West Agartala,
District: West Tripura, PIN: 799001
17. Sri Nagendra Debbarma,
Sr. Deputy Magistrate,
office of the DM & Collector,
North Tripura District, Dharmanagar,
P.O. Dharmanagar, P.S. Dharmanagar,
District: North Tripura, PIN: 799250
............Respondents
BEFORE THE HON'BLE MR. JUSTICE S. TALAPATRA For the petitioner : Mr. S.C. Das, Advocate For the respondents : Ms. A.S. Lodh, Addl. G.A. Mr. T. Debbarma, Advocate Date of hearing : 24.07.2017 Date of delivery of : 29.01.2018 Judgment and order Whether fit for reporting : YES Page 3 of 26 WP(C) 55 of 2015 Judgment and Order By means of this writ petition, the petitioner has challenged the mode of consideration of his representation on 'adverse' entries made in the ACRs (Annual Confidential Rolls). The petitioner has also challenged rejection of his representation for expunging the adverse entries and upgrading the assessment.
02. The controversy hovers around the ACRs for the year 2010-11, 2011-12 and 2012-2013. For the 'adverse' entries made in the ACRs by way of grading below the benchmark, the petitioner has been denied the promotion to the next higher post of Tripura Civil Services, Selection Grade ('TCS Selection Grade' in short). As consequence, he has been superseded by his juniors viz. the respondents No.13, 14, 15, 16 and 17.
03. The petitioner had been posted for around two years and four months (05.03.2009 to 12.07.2011) in the office of the District Magistrate & Collector, Dhalai District in the capacity of Deputy Collector (when he was in the TCS Grade-II) and then he had served in the capacity of Senior Deputy Magistrate and District Welfare Officer (when he was in the grade of TCS Selection Grade). During that period two ACRs [for the year 2009-10 and 2010-11] were finalised by the reporting, reviewing and accepting authorities. Page 4 of 26 WP(C) 55 of 2015
04. There was no 'adverse' entry in the ACR for the year 2009-10 and hence the petitioner has not projected any grievance against the said ACR. But the petitioner is seriously aggrieved by the ACR for the year 2010-11 [Annexure-14 to the writ petition]. The petitioner was transferred as the Senior Deputy Magistrate in the office of the District Magistrate & Collector, West Tripura, Agartala and he had been working in the said capacity on the date of filing the writ petition. During the period he served in the office of the District Magistrate & Collector, West Tripura, Agartala, two ACRs [for the year 2011-12 and 2012-13] were finalised by the reporting, reviewing and accepting authorities. The ACR for the year 2011-12 [Annexure-15 to the writ petition] contains 'adverse' entries. The ACR for the year 2012-13 [Annexure-27 series to the writ petition] does not, as such, contain any adverse entry, but overall grading that was awarded to the petitioner in the said ACR was only 'good', which is below the prescribed bench mark-'very good'. As such, that has to be treated as an 'adverse' entry. According to the petitioner the 'adverse' entry for the year 2012-13 was not at all communicated to the petitioner.
05. The petitioner had submitted a representation against the adverse entries made in his ACRs for the year 2010-11 and 2011-12 for expunging the adverse remarks and upgrading the assessment. The adverse overall grading 'good' awarded in his ACR for the year 2012-13 and the said ACR had Page 5 of 26 WP(C) 55 of 2015 not been communicated to the petitioner. If communicated, he could have made representation against the overall grading. But when the petitioner filed the representation against the entries made in the ACRs for the years 2010-11 and 2011-12, the authorities, according to the petitioner most arbitrarily sought the views of the respondent No.10 who entered the 'adverse' entries. On the basis of his views, the authority had rejected the representation of the petitioner. In this writ petition, the petitioner has challenged the action of the authorities for contravening the fundamental mode in grading the petitioner.
The form utilized for writing ACRs clearly shows that an ACR is now written on performance. Performance can be assessed on subjective impression by the higher authorities. But performance is required to be assessed on the basis of actual evaluation of performance including the achievements made by the officer concerned. The parameters for assessing the performance of the officer are also available in PART-I.B of the ACR form [Annexure-14 to the writ petition]. According to the petitioner, the respondent No.10 did not assess the petitioner's performance against the target fixed for him. However, the petitioner wrote his part of the ACR on the basis of the target fixed by him as there was no target fixed by the higher authorities. In the ACRs for the years 2010-11 and 2011-12 the 'adverse' entries were made by the respondent No.10 without any previous caution and Page 6 of 26 WP(C) 55 of 2015 without citing a single instance where the petitioner's achievement was less than the target fixed for him. The other ACR for the year 2012-13, even though apparently is not adverse, but for awarding overall grading 'good' which is below the prescribed bench mark-'very good', it became adverse in nature. The said ACR has not been communicated to the petitioner. When the petitioner received a copy by RTI disclosure he could know that he earned 'adverse' comment even though not directly, but consequently.
06. The petitioner has seriously alleged of bias as no instance has been cited by the authorities for awarding the petitioner's grade below the bench mark or for assessing his performance purportedly in terms of the established procedure. The petitioner filed the representations but those were not favourably decided. According to the petitioner, All India Services (Confidential Rolls) Rules, 1970 provides that there may be more than one reporting/reviewing/accepting authorities for the purpose of writing ACR of an officer for one year.
07. Having due regard to the said Rules, 1970, by the memorandum No.F.ACR-5/72 dated 02.05.2006 issued by the Chief Secretary under heading 'Revised Guidelines/Procedure for Writing, Reviewing and Accepting Annual Confidential Reports (ACR) of Gazetted Government Servants', it has been provided that some of the columns are meant for the Page 7 of 26 WP(C) 55 of 2015 reviewing and the accepting authorities so that an ACR is reviewed or accepted by an Officer on obtaining views of some other officers. In such cases, the views of the other officers are to be attached in a separate sheet and that sheet shall form a part of the ACR (paragraph-5). The ACR for the period when the petitioner was serving in the capacity of the Senior Deputy Magistrate was written by the Additional District Magistrate & Collector, reviewed by the District Magistrate and Collector and accepted by the Principal Secretary, Revenue Department. The accepting authorities for that period were two Principal Secretaries according to their tenure. The ACR for the period when the petitioner was serving in the capacity of District Welfare Officer was written by the District Magistrate and Collector, reviewed by the Secretary, SC, OBC & Minority Welfare and accepted by the Principal Secretary, Tribal Welfare Department.
08. The petitioner has further contended that the assessment made by him in the relevant part of the ACR form was objective and those were not taken into consideration and as such when the petitioner was serving as the Senior Deputy Magistrate he was graded below average. The petitioner has succinctly pointed out that the ACR of 2010-11 was placed before the accepting authority on 26.11.2013 after a delay of two years and four months when the Officer under whom the petitioner completed that terms, demitted his office on expiry of his tenure of reemployment. In the ACR for the year 2011- Page 8 of 26 WP(C) 55 of 2015 12, the reporting officer graded him 'very good', but the reviewing authority, the respondent No.2 herein, downgraded the said assessment to 'average' being actuated by bias. The ACRs were not placed before the accepting authorities, for the reasons as stated above, in time, those were placed to the succeeding officer who accepted the overall grading as average. In respect of the ACRs for the years 2010-11 and 2011-12 the petitioner received a communication under No.F.3(2)-GA(P & T)/CON/2013 dated 17.08.2013 from the Deputy Secretary, GA(P&T) Department, Government of Tripura communicating the extracts of the adverse entries made by the respondent No.10 in his ACR for the year 2011- 12 and requesting him to make representation, if any, against those adverse remarks. While communicating the adverse entries in the petitioner's ACR for the year 2011-12, the whole ACR was not sent to the petitioner, only extracts of the adverse entries were referred in the communication made to the petitioner.
09. After receipt of the said communication dated 17.08.2013 [Annexure-16 to the writ petition] the petitioner submitted a representation on 18.09.2013 to the Principal Secretary, GA (P&T) Department, Government of Tripura in respect of the adverse entries and advanced his prayer for expunging those remarks and for upgrading the assessment for the year 2011-12. The said representation dated 18.09.2013 [Annexure-17 to the writ petition] was followed by Page 9 of 26 WP(C) 55 of 2015 another communication under No.F.3(2)-GA(P&T)/CON/2013 dated 25.03.2014 by the Secretary, GA(P&T) Department, Government of Tripura apprising the petitioner about the adverse entries made by the respondent No.10 in the ACR for the year 2010-11. The petitioner was further apprised that he could make the representation, if any, against the adverse remarks or entries. After receipt of the said communication dated 25.03.2014 [Annexure-18 to the writ petition] the petitioner had submitted the representation on 31.03.2014 [Annexure-19 to the writ petition] in respect of those entries.
10. The petitioner has based on records averred in the writ petition that the view of the respondent No.10 was sought in respect of the representation by a letter No.F.3(2)- GA(P&T)/CON/2013 dated 08.04.2014 of GA(P&T) Department. According to the petitioner, that was grossly inappropriate. Not only that, the petitioner has succinctly submitted that the respondent No.10 restated his earlier views in respect of the performance of the petitioner by a letter dated 23.04.2014. It appeared to the petitioner that the views of the respondent No.10 was accepted and communicated to the petitioner by the memorandum No.F.3(2)- GA(P&T)/CON/2013 dated 08.04.2014 of the GA(P&T) Department by rejecting the representation of the petitioner. The said communication dated 08.04.2014 [Annexure-20 to the writ petition], according to the petitioner, itself shows that Page 10 of 26 WP(C) 55 of 2015 how perverse the decision contained in the communication dated 23.04.2014 [Annexure-21 to the writ petition] was.
11. The petitioner has highly objected for making the reference to the respondent No.10 for his views on the representation filed by the petitioner against the 'adverse' entries. This fact came to the surface for the RTI disclosures. [See Annexure-22 series to the writ petition]. The similar mode was adopted by the authorities for disposal of the representation dated 18.09.2013 made against the 'adverse' entries in the ACR for the year 2011-12. On the basis of the views obtained from the respondent No.10, the said representation was disposed of by accepting the views of the respondent No.10 against whose comments those representations were made. By the memorandum dated 04.12.2013 [Annexure-26 to the writ petition] the representation was disposed of replicating the views of the respondent No.10 as contained in the communication dated 05.10.2013 [Annexure-24 to the writ petition]. Several note- sheets are also made part of the records to show that there had no independent decision by the authority to which the representation was made. The petitioner has further submitted that the grading for the year 2012-13 is also adverse in nature because 'good' is below the prescribed bench mark for promotion to the next grade. The prescribed bench mark is 'very good'. But the said ACR was not communicated to the petitioner and about that adverse entry the petitioner came to Page 11 of 26 WP(C) 55 of 2015 know from the RTI disclosures. As a result of this unfair assessment and mode followed by the authorities, the petitioner has been denied his promotion to the next grade of TCS Senior Selection Grade and as consequence he was superseded by his juniors as impleaded. The Selection Committee without making their own assessment categorized the petitioner as unfit for the senior selection grade.
12. Mr. S. C. Das, learned counsel appearing for the petitioner has argued that the ACRs of the petitioner for the years as under consideration, were not written according to the procedure prescribed by the relevant rules as stated. The respondent No.10 has played the spoil-sport. The bias of the respondent No.10 has denied the petitioner from getting the fair assessment of his performance. As such, the adverse entries made in the ACRs for the years 2010-11, 2011-12 and 2012-13 [Annexure-11, 12 and 27 to the writ petition] are liable to be quashed and set aside. The respondent No.2 be in particular directed to convene a review selection committee for reviewing the recommendation of the selection committee meeting held on 28.04.2014 and 17.09.2014 [as reflected in Annexures 28 and 32 of the writ petition] for promotion to the TCS Senior Selection Grade from the date when his immediate junior, the respondent No.13 was given promotion to the said higher grade.
Page 12 of 26 WP(C) 55 of 2015
13. Mr. Das, learned counsel has further referred a few decisions of the apex court in respect of the obligation saddled with the authorities for communication of the adverse remarks for enabling the officer for making effective representation. In State of U.P. vs. Yamuna Shanker Misra and Another reported in (1997) 4 SCC 7, the apex court has observed that communication of the adverse confidential reports/rolls is for the purpose of enabling an employee to improve his performance in public service, in accordance with his fundamental duty to strive towards excellence in all spheres of individual and collective activity. Objectivity in writing the ACR is a public responsibility of the reporting/reviewing officer. A passage from Yamuna Shanker Misra (supra) is extracted hereunder:
"In Sukhdeo vs. Commissioner Amravati Division. Amravati & Anr.: [(1996) 5 SCC 103] this Court has pointed out that:
"It is settled law that when the Government resorts to compulsorily retire a Government servant, the entire record of service, particularly, in the last period of service is required to be closely scrutinised and the power would be reasonably exercised. In State Bank of India vs. Kashinath Kher [JT (1996) 2 SC 569 at 578 para 15], this Court had held that the controlling officer while writing confidential and character roll report, should be a superior officer higher above the cadres of the officer whose confidential reports are written. Such officer should show objectivity, impartiality and fair assessment without any prejudice whatsoever with highest sense of responsibility to inculcate in the officer's devotion to duty, honestly and integrity so as to improve excellence of the individual officer, lest the officers get demoralised which would be deleterious to be efficacy and efficiency of public service. In that case it was pointed out that confidential reports written and submitted by the officer of the same cadre and adopted without any independent scrutiny and Page 13 of 26 WP(C) 55 of 2015 assessment by the committee was held to be illegal. In this case, the power exercised is illegal and it is not expected to from that high responsible officer who made the remarks. When an officer makes the remarks, he must eschew making vague remarks causing jeopardy to the service of the subordinate officer. He must bestow careful attention to collect all correct and truthful information and give necessary particulars when he seeks to make adverse remarks against the subordinate officer whose career prospect and service were in jeopardy. In this case, the controlling officer has not used due diligence in making remarks. It would be salutary that the controlling officer b before writing adverse remarks would give prior sufficient opportunity in writing by informing him of the deficiency he noticed for improvement. In spite of the opportunity given if the officer/employee does not improve then it would be an obvious fact and would form material basis in support of the adverse remarks. It should also be mentioned that he had given prior opportunity in writing for improvement and yet was not availed of so that it would form part of the record."
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 51A (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 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 the facts or circumstances. Though sometimes, it may not be part of 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 given giving 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 Page 14 of 26 WP(C) 55 of 2015 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 standards of excellence in services constantly rises to higher levels and it becomes successful tool to manage the services with officers of integrity, honesty, efficiency and devotion."
[Emphasis added]
14. Mr. S.C. Das, learned counsel appearing for the petitioner has placed his reliance also on Dev Dutt vs. Union of India and Others reported in (2008) 8 SCC 725, where the Supreme Court has expanded the obligation of communication of the 'adverse' entries by stating as under:
"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 concerned authority, and the concerned authority 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 its employees. Only then would good governance be possible."
[Emphasis Added]
15. According to Mr. Das, learned counsel the respondent while rejecting the representations of the petitioner has clearly violated the fairness procedure as laid down in Deb Dutt (supra). It was 'from Caesar to Caesar'. Finally Mr. Das, learned counsel has made reference to another report [Sukhdev Singh vs. Union of India and Others reported in (2013) 9 SCC 573]. In that report, Page 15 of 26 WP(C) 55 of 2015 proposition of Dev Dutt (supra) has been restated and it has been held further that:
7. A three Judge Bench of this Court in Abhijit Ghosh Dastidar vs. Union of India: (2009) 16 SCC 146 followed Dev Dutt3. In paragraph 8 of the Report, this Court with reference to the case under consideration held as under:
"8. Coming to the second aspect, that though the benchmark "very good" is required for being considered for promotion admittedly the entry of "good" was not communicated to the appellant. The entry of 'good' should have been communicated to him as he was having "very good" in the previous year. In those circumstances, in our opinion, non- communication of entries in the ACR of a public servant whether he is in civil, judicial, police or any other service (other than the armed forces), it has civil consequences because it may affect his chances for promotion or get other benefits. Hence, such non-communication would be arbitrary and as such violative of Article 14 of the Constitution. The same view has been reiterated in the above referred decision relied on by the appellant. Therefore, the entries "good" if at all granted to the appellant, the same should not have been taken into consideration for being considered for promotion to the higher grade. The respondent has no case that the appellant had ever been informed of the nature of the grading given to him."
8. In our opinion, the view taken in Dev Dutt that every entry in ACR of a public servant must be communicated to him/her within a reasonable period is legally sound and helps in achieving threefold objectives. First, the communication of every entry in the ACR to a public servant helps him/her to work harder and achieve more that helps him in improving his work and give better results. Second and equally important, on being made aware of the entry in the ACR, the public servant may feel dissatisfied with the same. Communication of the entry enables him/her to make representation for upgradation of the remarks entered in the ACR. Third, communication of every entry in the ACR brings transparency in recording the remarks relating to a public servant and the system becomes more conforming to the principles of natural justice. We, accordingly, hold that every entry in ACR - poor, fair, average, good or very good - must be communicated to him/her within a reasonable period.
[Emphasis added] Page 16 of 26 WP(C) 55 of 2015 It is apparent on the face of the records that till 2012-13 the state Government had not implemented the proposition of the apex court to furnish the copy of the ACR to the officer concerned.
16. Mr. Das, learned counsel has submitted that by denying communication to the petitioner, though later on the petitioner came to know that the grading below the bench mark was awarded to him in the ACR for the year 2012-13. As that was not communicated, the representation could not be filed before the consequence had visited the petitioner. Such action, according to Mr. Das, learned counsel is grossly arbitrary and in violation of the principles laid down by the apex court [as extracted above].
17. From the other side, Ms. A.S. Lodh, learned Addl. G.A. has appeared for the state-respondents whereas Mr. T. Debbarma, learned counsel has appeared for the Public Service Commission. In order to repel the submission of Mr. Das, learned counsel, it has been asserted before this court that the ingredients of the bias against the respondent No.2 is without any foundation. If the reporting officer on the basis of materials and on his own experience as the controlling officer has assessed some officer below the grade, prescribed for promotion, that cannot by itself be treated as bias towards that officer. For laying the foundation of bias, substantiating materials would have been placed. The mere statement is not Page 17 of 26 WP(C) 55 of 2015 sufficient. In this regard, law has been well settled in E.P. Royappa vs. State of Tamil Nadu and Another reported in AIR 1974 SC 555.
18. Ms. Lodh, learned Addl. G.A. has submitted that in the year 2010-11, the petitioner was assessed 'below average', in the year 2011-12 the petitioner was assessed 'average' and in the year 2012-13 the petitioner was assessed 'good'. For that reason, the selection committee had assessed him to be unfit for promotion to the next grade. Those who were found suitable for the promotion after the assessment made by the selection committee were given promotion and as such their promotion to the higher grade cannot be treated as the supersession of the petitioner. Ms. Lodh, learned Addl. G.A. has further submitted that the ACRs for the year 2010-11 (the relevant part) and 2011-12 (relevant part) were communicated asking the petitioner that he might submit the representation, if any, against those remarks.
19. Ms. Lodh, learned Addl. G.A. appearing for the state-respondents has admitted that the 'representation was forwarded to the reporting officer for review law' and after the culmination of the process the entries were declared as 'good' warranting no change. In para-9 of the reply filed by the respondents No.1-5, 9 and 11, represented by Ms. Lodh, learned Addl. G.A., it has been asserted that the ACR of 2012- 13 was communicated to the petitioner by the letter dated Page 18 of 26 WP(C) 55 of 2015 11.12.2013 [Annexure-R/7 to the said reply]. Having perused that the said communication dated 11.12.2013 [Annexure-R/7 to the said reply] it emerges that only the grading as awarded was communicated to the petitioner, not the ACRs. Ms. Lodh, learned Addl. G.A. has stated that since the prescribed bench mark for promotion to the next grade is 'very good', the petitioner was not found fit for such promotion. Hence, no irregularity was done the respondent-authorities.
20. Mr. T. Debbarma, learned counsel has adopted the said submission in general but he has added that the petitioner's case was examined by the selection committee as he was in the zone of consideration for promotion to the post of the TCS Senior Selection Grade. The petitioner was assessed 'unfit' by the selection committee after evaluating the ACRs. It has been disclosed by the reply filed by the Tripura Public Service Commission, the respondent No.6. It has been also asserted in the reply that the ACRs for five years i.e. 2008-09 to 2012-13 were taken into consideration. Out of which, three ACRs i.e. 2010-11 to 2012-13 were adverse as those were below the prescribed bench mark. Nowhere, in the reply, it has been stated that the selection committee made their own assessment of the ACRs.
21. Having appreciated the submission advanced by the learned counsel for the petitioner and scrutinized the records and averments including the averments made by the Page 19 of 26 WP(C) 55 of 2015 petitioner in the rejoinder, the pertinent questions which emerge for consideration of this court are:
(i) whether the non-communication of ACRs as a whole caused detriment to the petitioner in making the representation and;
(ii) whether taking of the views of the reporting officer who entered adverse remark against the petitioner is violation of the fairness procedure?
One ancillary observation which this court would like to make before answering those questions is that the revised DPC guidelines in para-2.2.1(c) provides as follows:
"The DPC should not be guided merely by the overall grading, if any, that may be recorded in the CRs but should make its own assessment on the basis of the entries in the CRs, because it has been noticed that sometimes the overall grading in a CR may be inconsistent with the grading under various parameters or attributes."
22. From the reply filed by the Tripura Public Service Commission it has surfaced that there was a semblance of inquiry and later on the petitioner was assessed as 'unfit'. As such, this court cannot come to an inference that the selection committee did not assess the ACRs for five years or they had assessed the ACRs in a very casual and routine manner and graded the petitioner unfit. In Dev Dutt (supra), the apex court has further developed the principles of natural justice vis-a-vis the communication of ACRs by observing that fairness and transparency in public administration requires: Page 20 of 26
WP(C) 55 of 2015 "...all entries (whether poor, fair, average, good or very good) in the Annual Confidential Report of a public servant, whether in civil, judicial, police or any other State service (except the military), must be communicated to him within a reasonable period so that he can make a representation for its upgradation. This in our opinion is the correct legal position even though there may be no Rule/G.O. requiring communication of the entry, or even if there is a Rule/G.O. prohibiting it, because the principle of non-arbitrariness in State action as envisaged by Article 14 of the Constitution in our opinion requires such communication. Article 14 will override all rules or government orders."
It has been observed by the apex court in Dev Dutt (supra) as follows:
38. We, however, make it clear that the above directions will not apply to military officers because the position for them is different as clarified by this Court in Union of India vs. Major Bahadur Singh 2006 (1) SCC 368. But they will apply to employees of statutory authorities, public sector corporations and other instrumentalities of the State (in addition to Government servants).
39. In Canara Bank vs. V. K. Awasthy 2005 (6) SCC 321, this Court held that the concept of natural justice has undergone a great deal of change in recent years. As observed in para 8 of the said judgment:
"8. Natural justice is another name for common-
sense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a common-sense liberal way. Justice is based substantially on natural ideals and human values".
In para 12 of the said judgment it was observed:
"12.What is meant by the term "principles of natural justice" is not easy to determine. Lord Summer (then Hamilton, L.J.) in R. v. Local Govt. Board (1914) 1 KB 160:83 LJKB 86 described the phrase as sadly lacking in precision. In General Council of Medical Education & Registration of U.K. v. Spackman (1943) AC 627: (1943) 2 All ER 337, Lord Wright observed that it was not desirable to attempt "to force it into any Procrustean bed".
40. In State of Maharashtra vs. Public Concern for Governance Trust & Ors. 2007 (3) SCC 587, it was observed (vide para 39):
Page 21 of 26
WP(C) 55 of 2015 "39....In our opinion, when an authority takes a decision which may have civil consequences and affects the rights of a person, the principles of natural justice would at once come into play".
41. In our opinion, non-communication of entries in the Annual Confidential Report of a public servant, whether he is in civil, judicial, police or any other service (other than the military), certainly has civil consequences because it may affect his chances for promotion or get other benefits (as already discussed above). Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution."
23. Non-communication of the entire ACR to the petitioner was therefore, in view of the principle as laid down in Dev Dutt (supra), is arbitrary because it has violated the fairness in action, which is inalienable essence of Article 14 of the Constitution. However in this case, on the basis of the communication, the petitioner without raising any protest, submitted the representation in respect of the 'adverse' entries made in the ACRs for the year 2010-11 and 2011-12. Those representations were rejected allegedly on accepting the views of the respondent No.10, the reporting officer against whose comments the representations were made. So far the ACR of the year 2012-13 is concerned, that was not communicated. Such non-communication is grossly arbitrary and violation of the principle of natural justice. The said action of the respondent-authorities cannot be approved by this court. The petitioner should have been given opportunity for filing the representation against the downgrading as recorded in the said ACR for the year 2012-13. The petitioner for such non- communication has been deprived of valuable right as Page 22 of 26 WP(C) 55 of 2015 consolidated by the apex court in Dev Dutta (supra) and subsequent decisions. In Dev Dutta (supra), as very correctly Mr. Das, learned counsel appearing for the petitioner has underlined, it has been laid down that that the authority concerned shall decide the representation in a fair manner and within a reasonable period. It has been held by the apex court in unequivocal terms that the representation must be decided by an authority higher than the one who made the entries, otherwise there would be likelihood that the representation will be summarily rejected without due consideration and in that event it would be an appeal from Ceasar to Ceasar. While considering the representation on the adverse entries entered in the ACRs for the year 2010-11 and 2011-12, the representation was sent for views of the reporting officer and it appears from the impugned orders that views of the reporting officer have been given a primacy. In the memorandum dated 28.04.2014 [Annexure-23 to the writ petition], relating to the 'adverse' remarks in the ACR for the year 2010-11, the Joint Secretary to the Government of Tripura has clearly observed that the communication of the reporting officer has been considered for disposal of the representation. The similar mode has been followed while disposing the representation of the petitioner against the adverse entries made in the ACRs for the year 2011-12 by the memorandum dated 04.12.2013 [Annexure-26 to the writ petition], inasmuch as against the averment of the petitioner, Page 23 of 26 WP(C) 55 of 2015 in this regard, the respondent-authorities observed silence and did not furnish any other revealing fact.
24. For the reasons as stated above, this court is of the view that the mode or procedure that has been followed by the respondents in disposal of the representation is grossly erroneous and it has become an act of Ceasar to Ceasar and hence it cannot be sustained by this court. Consequently, both the memorandum dated 28.04.2014 [Annexure-23 to the writ petition] and the memorandum dated 04.12.2013 [Annexure- 26 to the writ petition] are interfered with and set aside. This court is of the further opinion that non-communication of the downgrading as entered in the ACR for the year 2012-13 was detrimental to the interest of the petitioner as the petitioner was entitled to make the representation against downgrading which amounts to the adverse entry. Since the petitioner was deprived of making such representation, the selection committee ought not have considered the said entry for purpose of assessing the petitioner for promotion.
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 Page 24 of 26 WP(C) 55 of 2015 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. Page 25 of 26 WP(C) 55 of 2015
26. In terms as stated, this writ petition stands allowed to the extent as indicated above.
There shall be no order as to costs.
The records as produced by Ms. A. S. Lodh, learned Addl. G.A. is returned.
JUDGE Moumita Page 26 of 26 WP(C) 55 of 2015