High Court
Case Details
WP(C) 983/2011 BEFORE HON’BLE MR. JUSTICE B. K. SHARMA JUDGMENT & ORDER (ORAL)
Legal Reasoning
Heard Mr. A. Dasgupta, learned counsel for the writ petitioner, and Mr. G. Sharma, learned State counsel. I have also heard Mr. D. Baruah, learned coun sel for respondent No. 5. The matter pertains to selection and appointment to the post of Revenue 2. Sheristadar. The challenge in the writ petition is Annexure-10, i.e., minutes o f the Selection Committee meeting held on 01.12.2010 by which the respondent No. 5 herein was recommended for promotion/appointment to the post of Revenue Sheri stadar. The petitioner has also challenged the consequential order dated 10.12. 2010 (Annexure-12) by which the respondent No. 5 was promoted as Revenue Sherist adar pursuant to the impugned selection. 3. The basic ground on which the petitioner has challenged the selection an d promotion of the respondent No. 5 is that the Selection Committee did not have all the ACRs of all the incumbents under consideration. As per the requirement of the Assam Ministerial District Establishment Service Rules, 1967 (hereinafte r referred to as ’the 1967 Rules’), the appointing authority is to obtain the An nual Confidential Reports (ACRs) for last five consecutive years along with rele vant service particulars of all eligible persons for recruitment to the cadre of Revenue Sheristadar. Such records are required to be placed before the Selecti
Decision
on Board. 4. There were five eligible candidates for promotion/ appointment to the po st of Revenue Sheristadar including the petitioner and the respondent No. 5. Th e Selection Committee, on the basis of the materials available on records and as were furnished to it, selected the respondent No. 5 for appointment and promoti on to the post of Revenue Sheristadar making the grievance against which the pet itioner has approached this Court by filing the instant writ petition. 5. It will be pertinent to mention here that the petitioner had earlier fil ed another writ petition, namely, WP(C) 6718/2010, challenging the promotion of the respondent No. 5 on the ground that no selection was conducted towards the p romotion of the respondent No. 5. Although initially an interim order was passe d on 20.12.2010, restraining the official respondents from appointing/ promoting the respondent No. 5, but finally the writ petition was disposed of by order da ted 25.01.2011 vacating the said interim order noticing the fact that there was a selection in which the respondent No. 5 was recommended for appointment/promot ion. However, liberty was granted to the petitioner to challenge the selection of the respondent No. 5 if so advised. Thereafter, the petitioner has filed thi s writ petition challenging the selection and appointment of the respondent No. 5. 6. Mr. Dasgupta, learned counsel for the petitioner submits that in absence of the complete ACRs of all the incumbents under consideration, the Selection C ommittee could not have conducted the selection and thus the selection, so condu cted, is against the provisions of the aforesaid 1967 Rules. He further submits that since the petitioner has, in the meantime, retired from service on attaini ng the age of superannuation on 31.05.2012, direction should be issued by this C ourt for promotion of the petitioner at par with the respondent No. 5 so as to e ntitle the petitioner better pensionary benefits. In this connection, he has pl aced reliance on the decision of the Apex Court, reported in Abhijit Ghosh Dasti dar vs. Union of India, (2009) 16 SCC 146, in which the Apex Court, in the given facts and circumstances, provided for retrospective promotion of the appellant involved therein without, however, any arrear pay and allowances. Mr. Dasgupta, learned counsel for the petitioner has further submitted that this course of ac tion is required to be adopted in the instant case in view of the fact that five years’ ACRs, pertaining to the petitioner, were all available before the Select ion Committee. 7. Mr. G. Sharma, learned State counsel, submits that that since the Select ion Committee, upon evaluation of all the materials on record including the ACRs , has recommended the respondent No. 5 for promotion/appointment to the post of Revenue Sheristadar, this Court, exercising its writ jurisdiction, will not sit on appeal over such recommendation. He also submits that the petitioner having already retired from service on attaining the age of superannuation on 31.05.201 2, the writ petition has become infructuous. 8. Mr. D. Baruah, learned counsel representing the respondent No. 5, defend ing the impugned selection and promotion/ appointment of the respondent No. 5, s ubmits that the Selection Committee having adopted the particular criteria for p romotion in tune with the provisions of the aforesaid 1967 Rules, the same is no t liable to be interfered with. Referring to the earlier order of this Court, d ated 20.05.2013, by which the ACRs of the incumbents, who were under considerati on for promotion, had been called for, Mr. D. Baruah submits that on perusal of the available ACRs, it will go to show that the respondent No. 5 had better grad ings in the relevant years. According to him, even otherwise also the Selection Committee having considered the available ACRs along with other relevant servic e particulars and having assigned marks, the said methodology, adopted by the Se lection Committee, in the absence of any allegation of mala fide, is not require d to be interfered with by this Court in exercise of its power under Article 226 of the Constitution of India. 9. Mr. D. Baruah, learned counsel, also submits in reference to the decisio n of the Apex Court, reported in Chandra Singh and others vs. State of Rajasthan and anr., (2003) 6 SCC 545, that in the peculiar facts and circumstances of the instant case this Court is entitled to go through the ACRs, which have been pro duced by the learned State counsel so as to arrive at its own satisfaction to fi nd out as to whether the impugned selection requires any interference and/or any injustice has been done to the petitioner. 10. I have given my conscious consideration to the submissions made by the l earned counsel for the parties and I have also perused the entire materials on r ecord including the ACRs produced by Mr. Sharma, learned State counsel. 11. It is an admitted position that the Selection Committee did not have the ACRs of five consecutive years while considering the cases of the five eligible incumbents including the petitioner and the respondent No. 5. This fact finds mention in the minutes of the Selection Committee meeting held on 01.12.2010. W hile the ACRs of the petitioner for all five years were available, but for the o ther incumbents same was not the case. So far as the respondent No. 5 is concer ned, ACRs for three years were available. It is in such circumstances, more par ticularly when, pursuant to the selection made the respondent No. 5 has been pro moted about three years back vide order dated 10.12.2010, this Court thought it prudent to look into the ACRs of the incumbents. The Selection Committee, in th e absence of all the available ACRs of all the incumbents, took recourse to cons ideration of the ACRs for two years. While doing so, the Selection Committee ca tegorized the officers as ’outstanding’, ’very good’, and ’good’ etc., and award ed marks accordingly. The Selection Committee also considered the service recor ds, educational qualification and work experience, etc., of the incumbents under consideration and eventually awarded marks. While the petitioner secured 6 mar ks, all the other four incumbents secured 7 marks. Considering the four incumbe nts, who had secured 7 marks each, the Selection Committee also took into consid eration the educational qualification, etc., of those incumbents and eventually recommended the respondent No. 5 for promotion since he was the senior-most amon g the four candidates. The aforesaid selection was made pursuant to the judgement and order of 12. this Court, dated 07.01.2009, in WP(C) 3255/2007 and WP(C) 4198/2007. By the sa id judgement and order, direction was issued for conducting selection for promot ion/appointment to the post of Revenue Sheristadar. Mr. Dasgupta, learned counsel for the petitioner submits that even the A 13. CRs, which have been produced by Mr. Sharma, learned State counsel, did not cont ain the ACRs of all the five years of the respondent No. 5. However, on perusal of the ACRs, it is found that the ACRs of all the five years of both the incumb ents are available on record. 14. Another ground, urged by Mr. Dasgupta, learned counsel for the petitione r, is that the ACRs were prepared in one go and there was no fair assessment of the performance of the incumbents and everything was done hurriedly. On perusal of the ACRs, it is found that the respondent No. 5 obtained better gradings tha n the petitioner. Although Mr. Dasgupta, learned counsel for the petitioner sub mits that the ACRs could not have been prepared more or less at the same time, b ut in the matter of preparation of ACRs, it cannot be said to be impermissible t o prepare ACRs of the different periods at a particular point of time, more part icularly when the ACRs were not prepared at the relevant time. Significantly, a ll the ACRs, pertaining to the incumbents were written prior in point of time th an the selection that was held on 01.12.2010. 15. In absence of the ACRs for five years of all the incumbents, barring the petitioner, the Selection Committee adopted the particular procedure for evalua tion of the service records of the incumbents. While doing so, same yardstick a nd parameters were applied in respect of all the incumbents. 16. To quell any doubt, this Court, by order dated 12.11.2013, directed the State respondents to produce the ACRs of the petitioner and the respondent No. 5 in respect of the relevant years. On the perusal of the said ACRs, it cannot b e said that the Selection Committee did any illegality in selecting the responde nt No. 5. It is in this context Mr. D. Baruah, learned counsel, has placed reli ance on Chandra Singh and others (supra), in which, under somewhat similar circu mstances the Apex Court had the occasion to go through the ACRs to derive satisf action as to whether any injustice had been done in the particular case. The de cision on which Mr. Dasgupta, learned counsel for the petitioner has placed reli ance upon, i.e., Abhijit Ghosh Dastidar (supra), is a decision in the given fact s and circumstances. In that case, when it was found that the benchmark was ’v ery good’ and the petitioner all along had ’very good’ in the previous year in t he ACR, the Apex Court by exercising its jurisdiction, ordered for retrospective promotion of the appellant. 17. Once it is found that the Selection Committee had recommended the respon dent No. 5 on the basis of all the available materials and that no illegality wa s committed in making the said recommendation, this Court, exercising its power of judicial review under Article 226 of the Constitution of India, cannot issue any direction for promotion of the petitioner with retrospective effect. Considering the matter in its entirety including all the materials on re 18. cord, I am not inclined to set aside the impugned selection/promotion of the res pondent No. 5. Consequently, the writ petition is dismissed, without, however, any order as to costs.