Indrajit Roy VsThe State of Tripura

Utpalendu Bikas Saha, J.—The instant writ petition is filed by the petitioner Sri Indrajit Roy for directing the respondent Nos. 1 and 2 to set aside and quash the office order No. 444/4-31/F. 1(9)-Estt/PHQ/2008 dated 13.11.2008 (Annexure-2 to the writ petition) and consequent thereto appoint him to the post of Head clerk/Accountant against the regular vacancy in the scale of pay of Rs. 5,000-10,300/- or in the corresponding revised scale thereto with all other allowances w.e.f. 13.11.2008 or from the date when his juniors i.e. the respondent Nos. 3 and 4 were appointed. Heard Mr. Bhattacharji, learned counsel for the petitioner and Mr. B.C. Das, learned Advocate General assisted by Mr. B. Datta, learned counsel for the state respondents.

The brief facts needed to be discussed are as follows:

While the petitioner was working as Upper Division Clerk (UDC) to the entire satisfaction of the respondent Nos. 1 and 2 and there was no complaint or blemish or stigma against him at any point of time, a final seniority list of Upper Division Clerks serving under the Tripura Police Department was published on 26.4.2008 (Annexure-1 to the writ petition) showing the seniority position on 31.12.2006. In the said seniority list, the name of the petitioner appeared at Sl. No. 9 whereas names of the respondent Nos. 3, 4 and 5 were appeared at Sl. Nos. 10, 11 and 13 respectively. Therefore, admittedly, the respondent Nos. 3, 4 and 5 are juniors to the petitioner in the feeder grade for promotion to the post of Head Clerk/Accountant. Though the petitioner was within the zone of consideration, but he was declared unfit for any other reason save and except the seniority even without communicating any ''adverse'' remark regarding his ACRs relating to the post of Upper Division Clerk. Thereafter vide impugned order dated 13.11.2008, the respondent Nos. 3, 4 and 5 were promoted to the post of Head Clerk against the regular vacancies in the scale of pay of Rs. 5,000-10,300/- with all other admissible allowances with effect from the date of their joining. Being aggrieved by the said order of promotion, the petitioner submitted a representation to the respondent No. 2 on 21.12.2008 demanding that he should be promoted to the post of Head Clerk from the date when his juniors were promoted.

It is also stated that as per modified policy for holding the post of Head Clerk/Accountant on promotion, minimum Bench Mark required is as under:

"2.3.1 (i) Having regard to the levels of post to which the promotions are to be made, the nature and importance of duties attached to the position, a Bench Mark grade would be determined for each category of posts for which promotions are to be made by selection method. The ''Bench Mark'' will be as follows:

(a) For promotion to all Group-C, Group-B and Group-A posts) up to and excluding the level of posts carrying the scale of pay of Rs. 12,000-1,84,000/- the Bench Mark will be Good."

It further provides that "there cannot be any supersession among those who are graded as fit in terms of their prescribed Bench Mark and their inter se seniority in the feeder grade shall be remain intact".

At no point of time, the petitioner was communicated any ''adverse'' remark which was allotted to him in his ACRs before considering him as unfit for promotion. Being aggrieved by the action of the State respondents, the petitioner has filed the present petition.

The state respondents while denying the claim of the petitioner stated, inter alia, that for promotion to the post of Head Clerk, ACRs grading for last five years is required and as the petitioner could not reach the minimum Bench mark as ''good'' for the preceding five years, the DPC awarded him unfit. It is also stated that any adverse remark passed by the authority is generally communicated to the employee concerned for his rectification. As in the year 2003-04, the petitioner was awarded ''average'' grading which was not an adverse remark at that point of time; the same was not communicated to him.

Mr. Bhattacharjee, learned counsel for the petitioner while urging for setting aside the impugned order of promotion and consequent thereto, for promotion of the petitioner in the post of Head Clerk would contend that if a person was awarded a grade in his ACRs below the Bench mark, he got in the previous year, it is required to be communicated to him as the same is adverse to him and unless the same is communicated, then the officer concerned is deprived of getting opportunity to explain the reason for getting such grade. In the instant case, admittedly, in the year 2002-03, the petitioner was awarded ''good''. Therefore, the subsequent Bench mark of grading ''average'' is an adverse one and the respondents are liable to communicate the same to the petitioner so that he can make himself suitable for promotion post by way of improving and also make a representation for modifying the said adverse remarks. He, however, submits that non-communication of ''adverse'' remarks itself is a ground to set aside the impugned order of promotion wherein his juniors were promoted.

Learned Advocate General in his usual fairness submits that the petitioner was awarded average grading in the year 2003-04 and at that period of time, the said average grading was not considered as adverse remarks. Thus, any communication of such remark to an employee was not a bounden duty of the employer. However, according to him also, it was the duty of the respondent No. 2 to communicate the Bench Mark ''average'' to the petitioner so that he could get an opportunity to make his representation to the authority to reconsider the same. He has also submitted that the respondent Nos. 3 to 5 are admittedly juniors to the petitioner and they were promoted to the post of Head Clerk/Accountant.

Having heard the learned counsel for the parties and considering the points involved in the instant writ petition, this Court is of considered opinion that awarding ''average'' as a Bench Mark is an adverse remark as on previous year, the petitioner was awarded Bench Mark ''good''. Therefore, it was the bounden duty of the respondent No. 2 to communicate the said adverse remark to the petitioner. But in the instant case, admittedly, the said remark was not communicated and such non-communication itself is unfair and unreasonable as well as violative of Article 14 of the Constitution.

The object of writing confidential report was discussed in State Bank of India etc., Vs. Kashinath Kher and others, etc.,, , which is as under:

"....The object of writing the confidential report is twofold, i.e., to give an opportunity to the officer to remove deficiencies and to inculcate discipline. Secondly, it seeks to serve improvement of quality and excellence and efficiency of public service. This Court in Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress and Others, pointed out the pitfalls and insidious effects on service due to lack of objectives by the controlling officer. Confidential and character reports should, therefore, be written by superior officers higher above the cadres. The officer should show objectivity, impartiality and fair assessment without any prejudices whatsoever with the highest sense of responsibility alone to inculcate devotion to duty, honesty and integrity to improve excellence of the individual officer. Lest the officers get demoralised which would be deleterious to the efficacy and efficiency of public service. Therefore, they should be written by a superior officer of high rank. Who are such high rank officers is for the appellant to decide. The appellants have to prescribe the officer in rank above the officer competent to write the confidentials. There should be another higher officer who has written confidential report to review such report. The appointing authority or any equivalent officer would be competent to approve the confidential reports or character rolls. This procedure would be fair and reasonable. The reports thus written would form the basis for consideration for promotion. The procedure presently adopted is clearly illegal, unfair and unjust".

In U.P. Jal Nigam and others Vs. Prabhat Chandra Jain and others, , the Apex Court has held that while writing the confidential reports, if the officials were to be downgraded from the previous report, then what should be the duty of the reporting officer as well as the accepting authority which is as under:

"... as we view it, the extreme illustration given by the High Court may reflect an adverse element compulsorily communicable, but if the graded entry is of going a step down, like falling from ''very good'' to ''good'' that may not ordinarily be an adverse entry since both are a positive grading. All that is required by the authority recording confidentials in the situation is to record reasons for such downgrading on the personal file of the officer concerned, and inform him of the change in the form of an advice. If the variation warranted be not permissible, then the very purpose of writing annual confidential reports would be frustrated. Having achieved an optimum level, the employee on his part may slacken in his work, relaxing secure by his onetime achievement. This would be an undesirable situation. All the same the sting of adverseness must, in all events, not be reflected in such variations, as otherwise they shall be communicated as such. It may be emphasised that even a positive confidential entry in a given case can perilously be adverse and to say that an adverse entry should always be qualitatively damaging may not be true. In the instant case we have seen the service record of the first respondent. No reason for the change is mentioned. The downgrading is reflected by comparison. This cannot sustain. Having explained in this manner the case of the first respondent and the system that should prevail in the Jal Nigam, we do not find any difficulty in accepting the ultimate result arrived at by the High Court."

The aforesaid view of the Apex Court was subsequently considered in State of U.P. Vs. Yamuna Shanker Misra and another, which is as under: "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 employee strives to improve excellence and thereby efficiency of administration would be augmented. The officer entrusted with the duty to write confidential reports, has a public responsibility and trust to write the confidential reports objectively, fairly and dispassionately while giving, as accurately as possible, the statement of facts on an overall assessment of the performance of the subordinate officer. It should be founded upon facts or circumstances. Though sometimes, it may not be part of the record, but the conduct, reputation and character acquire public knowledge or notoriety and may be within his knowledge. Before forming an opinion to be adverse, the reporting officers writing confidentials should share the information which is not a part of the record with the officer concerned, have the information confronted by the officer and then make it part of the record. This amounts to an opportunity given to the erring/corrupt officer to correct the errors of the judgment, conduct, behavior, integrity or conduct/corrupt proclivity. If, despite being given such an opportunity, the officer fails to perform the duty, correct his conduct or improve himself necessarily, the same may be recorded in the confidential reports and a copy thereof supplied to the affected officer so that he will have an opportunity to know the remarks made against him. If he feels aggrieved, it would be open to him to have it corrected by appropriate representation to the higher authorities or any appropriate judicial forum for redressal. Thereby, honesty, integrity, good conduct and efficiency get improved in the performance of public duties and standards of excellence in services constantly rises to higher levels and it becomes a successful tool to manage the services with officers of integrity, honesty, efficiency and devotion."

In Dev Dutt Vs. Union of India (UOI) and Others, , the Apex Court considering its earlier judgment as referred to above, inter alia, that fairness and transparency in public administration requires that 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 must be communicated to him within a reasonable period so that he can make a representation for its upgradation.

In the case of Dev Dutt (supra), the Bench Mark laid down by the authorities for promotion to the post of Superintending Engineer was that the candidate should have ''very good'' entry for the last five years. Thus, in the situation, the ''good'' entry in fact is an adverse entry because it eliminates the candidate from being considered for promotion. It is also stated by the Apex Court that nomenclature is not relevant, it is the effect which the entry is having which determines whether it is an adverse entry or not. It is thus the rigours of the entry which is important, not the phraseology. The grant of ''good'' entry is of no satisfaction to the incumbent if it in fact makes him ineligible for promotion or has an adverse effect on his chances. In fact, in the case of Dev Dutt (supra), the Apex Court developed the principle of natural justice.

The Apex Court ultimately in that case held 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."

Before Dev Dutt (supra), step down of Bench Mark like ''very good'' to ''good'' was not necessary for communication to the employee concerned, but after Dev Dutt Vs. Union of India (UOI) and Others, , communication of the Bench mark is a sine qua non as non-communication of the downgraded Bench mark is violative of principle of natural justice.

In Abhijit Ghosh Dastidar Vs. Union of India (UOI) and Others, , the Apex Court considered the case of Dev Dutt (supra) and approved the views expressed by it in Dev Dutt.

A learned single Judge of the Gauhati High Court (myself) in Dr. Nandita Choudhury Vs. Hindustan Paper Corporation Ltd., , considering the aforesaid decision in Dev Dutt (supra) as well as Abhijit Ghosh Dastidar (supra) noted that the concept of principle of natural justice is going to change day by day depending on the circumstances of a particular case and stated, inter alia, that "in view of the aforesaid position, the law is settled by the Apex Court in Dev Dutt (supra) and this Court is unable to accept the contention of Mr. Sarma to the extent that the employer is only supposed to communicate the adverse entry to the employee concerned and the entry ''good'' being not an adverse entry, the respondent HPC did not commit any wrong for alleged non-communication of the entries in the report" and finally directed the respondent No. 2 "to have a review discussion on the appraisal of the entry ''good'' made by the Reporting Officer and as agreed to by the Reviewing Officer to the performance of the writ petitioner in the consequent four years from 2000-2004 and if after completion of the review discussion the authority finds the petitioner fit for a Bench Mark from ''good'' to ''very good'' for the aforesaid years then the authority may consider the case of the petitioner for promotion to the next higher grade in accordance with the provisions"...

In the said case, it was also considered whether a decision of the Court will be operated prospectively or retrospectively depends upon what the Court said in its order. In absence of any express finding regarding prospective or retrospective effect of the law laid down in a decision, it will always be operated retrospectively. The aforesaid view of this Court gets support from the decision of the Apex Court in M.A. Murthy Vs. State of Karnataka and Others, wherein the Apex Court relied on I.C. Golak Nath and Others Vs. State of Punjab and Another, .

In the case of Dev Dutt (supra) as the Apex Court did not say anything as to whether the said decision would be prospective, it is natural that the said decision would give an effect retrospectively. Therefore, even if, the period for Bench Mark of the present petitioner is relating to 2003-04, then also, the petitioner would get the benefit from the decision of Dev Dutt Vs. Union of India (UOI) and Others, .

In the instant case also, it is the admitted position that the case of the petitioner was not considered for promotion as his grading was below the Bench Mark. But the adverse remark ''average'' was not admittedly communicated to him. As a result, the petitioner was deprived of improving himself and making any representation to the higher authority than the officer who has written the ACRs which itself is a violation of natural justice as well as violation of Article 14 of the Constitution. Therefore, this court is of considered opinion that it would meet justice if the petitioner is directed to make a representation against his Bench Mark ''average'' to the Director General of Police, the respondent No. 2 herein and it is directed to the respondent No. 2 that on receipt of the same, he shall consider it in its true sense and dispose of by a reasoned order and if it is found that the Bench Mark ''average'' is needed to be altered and it would be ''good'' or ''very good'', then he should consider the case of the petitioner for promotion from the date when his juniors were considered.

At this stage, the learned Advocate General submits that the petitioner has already been promoted on and from 24.10.2009. Whatever it may be, the respondent No. 2 if after consideration of the representation of the petitioner found that the petitioner was eligible for promotion in the year 2008 to the post of Head Clerk/Accountant, when his juniors were promoted, then he should be given promotion with retrospective effect i.e. the date of his juniors'' promotion with all benefits. With the aforesaid order, the instant writ petition is disposed of. No order as to costs.