Sachindra Nath Dey vs Union of India

Aridam Sinha, J.—The petitioner is a member of the Central Industrial Security Force (CISF). The petitioner was up for crossing the efficiency bar as on 1st April, 1987. He was found unfit to cross the bar. He then again sought to cross the bar in the next year and did cross it. 10 years later he made a representation dated 26th October, 1999 stating, inter alia, there was no reason for preventing him from crossing the efficiency bar as on 1st April, 1987. In that representation he also stated he had received only one censure on the ground of slackness by a communication dated 21st September, 1986. It appears, the said representation was neither followed up by the petitioner nor considered. He then made yet another representation in the year 2001 which was rejected as being devoid of merit by communication dated 14th May, 2001. Hence this writ petition praying for the relief of quashing the proceedings of the Departmental Promotion Committee (DPC) in which the petitioner had not been allowed to cross the efficiency bar as on 1st April, 1987.

Mr. Chakraborty, learned advocate appears on behalf of the petitioner and draws attention to the communication dated 14th May, 2001. He submits, the reason for rejection of the representation, as would appear therefrom, was that in consideration of overall service records of his client he was found unfit to cross efficiency bar with effect from 1st April, 1987. It would further appear that the Authority considering the representation found that the Board member had assessed his client correctly and due to his poor service record he was declared unfit to cross efficiency bar. Mr. Chakraborty submits, there was no communication of any adverse remark in the service record of his client as made to him. He relied on the decision of the Supreme Court in the case of Dev Dutt v. Union of India & Ors. reported in (2008) 8 SCC 725 in particular to paragraph 17 therein as is set out below :-

"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 effect 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) he would have an opportunity of making a representation against the entry if he feels it is unjustified, and pray for its up gradation. 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."

He submits, therefore, the decision of the DPC in preventing his client from crossing the efficiency bar as on 1st April, 1987 could not be sustained and should be set aside.

He submits further, by relying on a judgment of this Court delivered by a learned Single Judge in the case of Kashi Nath Bose v. State of West Bengal reported in 2011 (2) CHN (CAL) 536 that the petitioner thereby having suffered withholding of one increment had continued to suffer thereafter which gave him a cause which was continuous and he was entitled to seek the relief in spite of intervening period of delay. He relies on paragraph 29 in the said judgment wherein the said learned Judge had in turn relied on a judgment of the Supreme Court in the case of M.R. Gupta v. Union of India & Ors. reported in 1995(5) SCC 628. It is sufficient to reproduce the portion quoted from the judgment of the Supreme Court in M.R. Gupta (supra) :-

"5. Having heard both sides, we are satisfied that the Tribunal has missed the real point and overlooked the crux of the matter. The appellant''s grievance that his pay fixation was not in accordance with the rules, was the assertion of a continuing wrong against him which gave rise to a recurring cause of action each time he was paid a salary which was not computed in accordance with the rules. So long as the appellant is in service, a fresh cause of action arosed every month when he is paid his monthly salary on the basis of a wrong computation made contrary to rules. It is no doubt true that if the appellant''s claim is found correct on merits, he would be entitled to be paid according to the properly fixed pay scale in the future and the question of limitation would arise for recovery of the arrears for the past period, in other words, the appellant''s claim, if any, for recovery of arrears calculated on the basis of difference in the pay which has become time barred would not be recoverable, but he would be entitled to proper fixation of his pay in accordance with rules and to cessation of a continuing wrong if on merits his claim is justified. Similarly, any other consequential relief claimed by him, such as, promotion etc. would also be subject to the defence of laches etc. to disentitle him to those reliefs. The pay fixation can be made only on the basis of the situation existing on 1.8.1978 without taking into account any other consequential relief which may be barred by his laches and the bar of limitation. It is to this limited extent of proper pay fixation the application cannot be treated as time barred since it is based on a recurring cause of action.(Quoted)."

Ms. Alam, learned advocate appears on behalf of the Union of India and submits, there has been suppression by the petitioner in that the petition did not disclose he had crossed the efficiency bar in the following year i.e. 1988. The petitioner accepted the position without protest. A belated representation was made in October, 1999 and another in the year 2001, the latter the Authorities in fairness had duly considered and rejected. She submits further, by relying on the paragraph 16 of the affidavit-in-opposition filed, the petitioner was communicated adverse remarks recorded in Annual Confidential Report (ACR) for the years 1981, 1982 and 1985 as per particulars given therein. Mr. Chakraborty, however, disputes the same by referring to paragraph 21 of the affidavit-in-reply filed by his client.

The claim for relief of the petitioner appears to be barred by estoppel. Whether or not the petitioner was informed of the adverse remarks in his ACR is a disputed question. Nevertheless, the Supreme Court in Dev Dutt (supra) had declared the law relating to communication of adverse remarks to be that communication must be made in upholding or following the principles of natural justice. The petitioner when prevented from crossing the efficiency bar as on 1st April, 1987 came to know he had been found unfit. He, if aggrieved, knew he was. He could have protested. The fact of the petitioner not having had protested at the material time gives rise to the inescapable conclusion that he knew why he was prevented. He applied again in the next year and crossed the efficiency bar. The state of acceptance continued up to October, 1999. In the circumstances, it is not necessary for this Court to even advert to the disputed question of whether the adverse remarks were communicated to the petitioner.

By an office memorandum dated sometime in June, 1987 the petitioner was informed that his case for crossing efficiency bar due on 1st April, 1987 had been considered by the DPC on 1st May, 1987 and the Board of officers was of the opinion that he was unfit to cross the bar. That memorandum did not bear any reason. The reason was supplied by the said communication dated 14th May, 2001 which came in response to the representation of 2001 made by the petitioner. There is reference therein to the service record of the petitioner as had been considered and he was found unfit to cross the efficiency bar with effect from 1st April, 1987. So far as the service record is concerned this Court has before it, as aforesaid, a dispute regarding whether the adverse remarks in the ACR were or were not communicated. However, by the petitioner''s own showing, in his representation dated 26th October, 1999 he said he had received one censure on the ground of slackness per communication dated 21st September, 1986. Among the meanings to the word ''slack'' given by Concise Oxford English Dictionary, 11th Edition, one of them is ''careless, lazy or negligent''. Keeping in mind the conduct of the petitioner in accepting the opinion of the officers of the DPC in finding him unfit on the count of efficiency in the year 1987, thereafter being found fit in the year 1988 and carrying on till October, 1999 when he first protested, this Court is not inclined to interfere as the ingredients of the bar of estoppel have come into play against the petitioner. The petitioner by his omission can be said to have intentionally caused or permitted to give rise to the belief that he had accepted he was unfit to cross the efficiency bar as on 1st April, 1987 to prevent him from turning around and thereafter denying his acceptance of it. As such M.R. Gupta (supra) is not applicable to the case of the petitioner.

For the reasons aforesaid the writ petition is found to be without merit and the same is dismissed.