High Court
Case Details
WP(C) 4080/2013 BEFORE THE HON’BLE MR. JUSTICE UJJAL BHUYAN ng disposed of by this common judgment and order. These two writ petitions raise identical legal issue and are bei In WP(C) No.4080/2013, there are three petitioners whereas in WP 2. (C) No.4157/2013, there is one petitioner. The four petitioners are serving as I nspector of Taxes in the Finance (Taxation) Department, Government of Assam. The y are aggrieved by promotion of respondent Nos. 6 to 23 (same set of respondents in both the cases) from the post of Inspector of Taxes to the post of Superinte ndent of Taxes superceding them. 3. Case of the petitioners is that they are serving as Inspector of Taxes in the Finance (Taxation) Department, Government of Assam since 16-08-199 9. After rendering service for more than 14 years, petitioners are entitled for promotion to the next higher rank of Superintendent of Taxes and were legitimate ly expecting such promotion. Service of the petitioners is governed by the Assam Taxation Ser 4. vice Rules, 1995. Under the Rules, promotion from the post of Inspector of Taxes is to Superintendent of Taxes. Eligibility requirement for such promotion is th at one should complete 10 years of service as Inspector of Taxes, should success fully undergo the training and pass the departmental examinations as prescribed. Cadre strength of Superintendent of Taxes is 28 and under the Rules, 2/3rd of t he cadre strength are to be filled up by way of promotion, which is 18 posts. As per Rule 12(4) of the Rules, selection for promotion has to be on the basis of merit with due regard to seniority. 5. As far back as on 09-08-2010, Commissioner of Taxes, Assam (resp ondent No.3) had written to all the Inspector of Taxes including the petitioners and the respondents requesting them to submit their Annual Confidential Reports (ACRs) for the years 2005-06 to 2009-2010 for consideration for promotion to th e next higher cadre. Accordingly, petitioners submitted their ACRs. Notification dated 15-05-2013 was issued by the Finance (Taxatio 6. n) Department, Government of Assam, publishing the gradation list in the cadre o f Inspector of Taxes for the calendar year 2011. Petitioners of WP(C) No.4080/20 13 are placed at Serial Nos. 10, 15 and 26 in the said gradation list whereas pe titioner of WP(C) No.4157/2013 is placed at Serial No.12. Respondent Nos. 6 to 2 3 are placed at Serial Nos. 7 to 9, 11, 13, 14, 16 to 25, 27 and 28 in the said gradation list. Thus, petitioners are senior to many of the above respondents in the said gradation list. Notification dated 20-07-2013 was issued by the Finance (Taxatio 7. n) Department temporarily promoting respondents 6 to 23 to the post of Superinte ndent of Taxes under Regulation 4 (d) of the Assam Public Service Commission (Li mitation of Function) Regulations, 1951. 8.
Legal Reasoning
Aggrieved by the promotion of respondents 6 to 23 to the post of Superintendent of Taxes and denial of such promotion to the petitioners, the tw o writ petitions have been filed assailing such promotion of respondents 6 to 23 and seeking a direction to the State respondents to hold fresh selection for pr omotion to the post of Superintendent of Taxes. 9. Contention of the petitioners is that under Rule 12(4), selectio n for promotion is to be made on the basis of merit with due regard to seniority . However, if the Selection Committee does not consider an officer suitable for promotion according to seniority, it shall record the reasons in writing and for ward the same to the appointing authority. To the best of their knowledge, there are no adverse entries in the ACRs of the petitioners. Remarks made in the ACRs were not communicated to them as per mandate of law laid down by Hon’ble Suprem e Court in Dev Dutt -Vs- Union of India and others reported in (2008) 8 SCC 725. As a matter of fact, Government of Assam in the Personnel (A) Department had is sued office memorandum dated 25-04-2011 laying down detailed guidelines for prep aration of ACRs in the light of the judgment in Dev Dutt (supra). It provides fo r communication of complete ACRs to the concerned officer and giving opportunity to such officer to make representation against any entry made in the ACRs and d ecision has to be taken on such representation objectively. Aforesaid procedure was not followed in the selection because of which petitioners were illegally de prived from such promotion. 10. State respondents i.e. respondent Nos. 1 to 5 have filed a commo n affidavit. It is stated that total cadre strength of Superintendent of Taxes i s 166 and not 28 as stated by the petitioners. Out of 166, 111 posts are require d to be filled up through promotion being 2/3rd of the total cadre strength as p er Rule 11(e) of the Rules. It is also stated that though Department of Personne l (A), Government of Assam had issued the office memorandum dated 25-04-20 11, the applicable rules i.e. Assam Services (Confidential) Rules, 1990 which de als with ACRs have not been amended as yet. As per Rule 12(4) of the Rules, sele ction for promotion to the post of Superintendent of Taxes is on the basis of me rit with due regard to seniority. Merit is assessed on the basis of performance reflected in the ACRs of the concerned years. Selection Committee constituted fo r the purpose fixed grade wise marks as under:- (i) Below Average (ii) Average (iii) Good/above average (iv) Very Good (v) Outstanding - - - - 2 3 - 0 1 5 candidate in terms of the above gradings for five consecutive years 11. Selection committee decided that the bench mark of merit to cons ider promotion would be 50% of the total possible marks that can be secured by a precedin g the year in which selection is held. Maximum possible marks that can be secure d by a candidate on the basis of the above gradings is 25.50% of 25 would be 12. 5% which was rounded of to 13. Thus any candidate within the zone of considerati on who secured 13 or more marks would be considered as having qualified on merit . Petitioners failed to secure minimum bench mark of 13 as per the criteria evol ved by the Selection Committee. Accordingly, they could not be promoted. 12. Vacancy position in the cadre of Superintendent of Taxes for the calendar year 2011 was 10 and for the year 2012 it was 8. Though zone of consid eration is generally considered in the ratio of 1:4, for the year 2011, only 27 candidates in the cadre of Inspector of Taxes were found eligible for promotion as per the Rules. As such, cases of all the 27 candidates in order of seniority were considered. Likewise, for the year 2012, cases of all 17 candidates in the cadre of Inspector of Taxes were taken into consideration. DPC recommended a lis t of 18 eligible candidates for promotion. Petitioners could not be promoted as they did not get the required bench mark of merit. Respondents have further stat ed that there were no adverse remarks in the ACRs of the petitioners for the con cerned years. Petitioners have filed reply affidavit. It is stated that the pr 13. ocedure adopted by the authorities is contrary to the law laid down in Dev Dutt (supra). Entries recorded in the ACRs of the petitioners were never communicated to the petitioners. Therefore, such gradings in the ACRs of the petitioners cou ld not have been taken into consideration by the DPC. The same has vitiated the impugned selection which calls for interference.
Legal Reasoning
14. Heard Mr. N. Dutta, learned Senior Counsel assisted by Mr. U. Ra jbongshi and Ms. K. Dutta, learned Counsel for the petitioners. Also heard Mr. S . Saikia, learned Standing Counsel Finance (Taxation) Department, who has also p roduced the record. Mr. U.K. Nair, learned Counsel has appeared on behalf of the private respondents. 15. Though exhaustive arguments were advanced by Mr. N. Dutta, learn ed Senior Counsel on the law relating to communication of entries in ACRs includ ing effect of non-communication with equally forceful rebuttal from Mr. Saikia a nd Mr. Nair, it may not be necessary to delve into the details of their argument s in view of the concession made by the State in the course of the hearing. 16. On 04-09-2013, during the hearing, Mr. Saikia, learned Standing Counsel made a submission on instruction that the departmental authorities had r eviewed the position subsequent to filing of the writ petitions which would to a large extent meet the grievance of the petitioners. In view of such submission, the departmental counsel was asked to place such instruction before the Court i n the form of a short affidavit. 17. Pursuant thereto respondents 1 to 5 filed an additional affidavi t on 17-09-2013. It is stated that in view of the directions contained in Dev Du tt (supra) read with the memo of the Personnel (A) Department dated 25-04-2011 a nd the provisions of the Assam Services (Confidential Rolls) Rules, 1990, the en tries in the ACRs would be communicated to the officers giving them an opportuni ty to make representations to the Government of Assam. In the event of receipt o f such representations, Government will pass required orders in consultation wit h the reporting, reviewing and accepting authorities. The entire process would b e completed within four months from the date of receipt of such representations. In the event of any change in the entries in the ACRs of the petitioners, depar tment may consider holding review DPC to consider the case of the petitioners. F or that purpose, four posts of Superintendent of Taxes would be kept vacant. Though the aforesaid affidavit of the State has considerably nar 18. rowed down the scope of the lis, it would however be necessary to briefly dilate on certain factual aspects as well as the legal position before closing the mat ter. 19. From the statement enclosed with the counter affidavit of the st ate respondents, it is seen that the four petitioners had secured the following gradings in their concerned ACRs and consequential marks in the DPC :- 2007-08 2008-09 2009-10 2010-11 2011-12 Total Shri Minakshi Kakati Kalita Shri Bhaskarjyoti Goswami Good=3 Shri Dipen Das Average=1 Good=3 9 Good=3 Good=3 Good=3 Average=1 Average=1 Average=1 Average= Good=3 Average=1 Good=3 Good=3 1. Average=1 2. 1 3. 11 4. Average=1 11 9 Smti. Indrani Borah Good=3 Good=3 Average=1 Average=1 20. In Dev Dutt (supra), the Hon’ble Supreme Court after observing t hat grant of a (cid:28)good (cid:29) entry would be of no satisfaction to the incumbent if it i nfact makes him ineligible for promotion or has an adverse effect on his chances , held that a person getting any of the entries from (cid:28)poor (cid:29) to (cid:28)very good (cid:29) shoul d be communicated the entry so that he has an opportunity of making a representa tion praying for its upgradation and that such a representation should be decide d fairly and within a reasonable period by the authority concerned. Authority co ncerned has been indicated to be an authority higher than the one who gave the e ntry. Non-communication of entries would be arbitrary and violative of article 1 4 of the Constitution. Relevant portion of the said judgment is as under :- (cid:28)36. In the present case, we are developing the principles of natural justice by holding that fairness and transparency in public administration requires that a ll entries (whether poor, fair, average, good or very good) in the annual confid entical report of a public servant, whether in civil, judicial, police or any ot her State service (except the military), must be communicated to him within a re asonable period so that he can make a representation for its upgradation. This i n 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. prohibit ing it, because the principle of non-arbitrariness in State action as envisaged by Article 14 of the Constitution in our opinion requires such communication. Ar ticle 14 will override all rules or government orders. 37. We further hold that when the entry is communicated to him the public servan t should have a right to make a representation against the entry to the authorit y concerned, and the authority concerned must decide the representation in a fai r manner and within a reasonable period. We also hold that the representation mu st 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 ade quate consideration as it would be an appeal from Caesar to Caesar. All this wou ld 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 possib le. (cid:29) ******************************* (cid:28)41. In our opinion, non-communication of entries in the annual confidential rep ort of a public servant, whether he is in civil, judicial, police or any other s ervice (other than the military), certainly has civil consequences because it ma y affect his chances for promotion or get other benefits (as already discussed a bove). Hence, such non-communication would be arbitrary, and as such violative o f Article 14 of the Constitution. (cid:29) 21. In Abhijit Ghosh Dastidar -Vs- Union of India and others reporte d in (2009) 16 SCC 146, a three judge bench of the Hon’ble Supreme Court referre d to the judgment in Dev Dutt and held that when the bench mark to be considered for promotion was (cid:28)very good (cid:29), the entry of (cid:28)good (cid:29) which was recorded in the AC R of the appellant in that case and was found not communicated to him, should no t have been taken into consideration for promotion to the higher grade. 22. In the recent case of Sukhdev Singh -Vs- Union of India and othe rs (Civil Appeal No.5892/2006 decided on 23-04-2013), a three judge bench of the Hon’ble Supreme Court declared that their Lordships were not only in complete a greement with the view in Dev Dutt but also approved the same. After referring t o Abhijit Ghosh Dastidar, it was held that every entry in ACR of a public servan t should be communicated to him within a reasonable period. It was held as under :- (cid:28)8. In our opinion, the view taken in Dev Dutt that every entry in ACR of a publ ic 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 achi eve more that helps him in improving his work and give better results. Second an d equally important, on being made aware of the entry in the ACR, the public ser vant 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. T hird, communication of every entry in the ACR brings transparency in recording t he remarks relating to a public servant and the system becomes more conforming t o the principles of natural justice. We, accordingly, hold that every entry in A CR - poor, fair, average, good or very good - must be communicated to him/her wi th a reasonable period. (cid:29) 23. Coming to the facts of the present case, as already noticed abov e, all the petitioners received the gradings of (cid:28)good (cid:29) and (cid:28)average (cid:29) for the var ious years under consideration. Such gradings have adversely affected their cons ideration for promotion as because of such gradings, they could not secure the b ench mark fixed. Admittedly, such entries were not communicated to the petitione rs. Thus, having regard to the law laid down by the Apex Court and t 24. he stand taken by the State respondents in their additional affidavit filed on 1 7-09-2013, the following directions are hereby issued:- (1) entries in the ACRs of all the officers i.e. petitioners and respondents 6 t o 23 for the period 2007-08 to 2011-12 be communicated to them; (2) the said officers may submit representations before the Government of Assam, Finance (Taxation) Department against such entries, if they so desire; (3) the State Government in the Finance (Taxation) Department shall consider suc h representations fairly and objectively with an open mind and communicate the d ecisions taken to the concerned officers; (4) the above exercise from directions (1) to (3) shall be completed within a pe riod of four months from the date of communication of the entries in the ACRs; (5) once the above exercise is completed within the period specified, Government of Assam in the Finance (Taxation) Department shall hold a review DPC to consid er afresh the case of the petitioners and respondents 6 to 23 for promotion to t he rank of Superintendent of Taxes; (6) as per submission of the State respondents themselves, four posts of Superin tendent of Taxes shall be kept vacant till completion of the above exercise; (7) promotion of respondents 6 to 23 to the post of Superintendent of Taxes shal l remain on temporary basis under Regulation 4(d) of the Assam Public Service Co mmission (Limitation of Function) Regulations, 1951 till completion of the above exercise. 25. as to cost.
Decision
Writ petitions are accordingly disposed of but without any order 26. Record produced by learned Standing Counsel is returned back.