Arvind Kumar Thakur, aged about 58 years, Son of Sri Ram Krishna Thakur, Resident v. The State of Jharkhand. 1. 2. Member, Board of Revenue, ITI, Building, P.O. &
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 2870 of 2023 ------- Arvind Kumar Thakur, aged about 58 years, Son of Sri Ram Krishna Thakur, Resident of Flat No. 205, Kumar Residency, Hatia Bazar, P.O. Hatia, P.S. Jagganathpur, District-Ranchi, Jharkhand (Presently posted as Section Officer in Jharkhand State Election Commission, New Market, Ratu Road Chowk Ranchi. ..… Petitioner Versus The State of Jharkhand. 1. 2. Member, Board of Revenue, ITI, Building, P.O. & P.S.Dhurwa, District-Ranchi. 3. Principal Secretary, Department of Personnel, Administrative Reforms and Raj Bhasha, Govt. of Jharkhand, Project Building, P.O. & P.S. Dhurwa, Ranchi. 4. of Personnel, Administrative Reforms and Raj Bhasha, Govt. of Jharkhand, Project Building, P.O. & P.S. Dhurwa, Ranchi. 5. Under Secretary, Department of Personnel, Administrative Reforms and Rajbhasha, Govt. of Jharkhand, Project Building, P.O. & P.S. Dhurwa, District-Ranchi. Joint Secretary, Department ..… Respondents ------- CORAM : HON’BLE MR. JUSTICE DEEPAK ROSHAN ------- : Mr. Bhanu Kumar, Adv For the Petitioner For the Respondents : Mr. Pradeep Kr., A.C. to AAG-IV ------- 11/12.7.2024 Heard learned counsel for the parties. 2. The instant writ application has been preferred by the petitioner for the following reliefs: (i) For issuance of an appropriate writ/s, order/s, direction/s or writ in the nature of mandamus commanding upon the respondents to consider the case of the petitioner for promotion to the post of Under Secretary from the post of Section Officer in the scale of PB-III Rs. 15,600-39,100 +6600/- (Level-11 as per VII CPC), because the Departmental Promotion Committee convened on 27.09.2022 under the Chairmanship of Member, Board of Revenue, have denied the promotion to the petitioner and recommended the petitioner as ’Not Fit for Promotion’, which is at Sl. No. 19 of the said Minutes on the sole ground that Annual Performance Annual Confidential Report (ACR) for the year 2020-21, 2021-2022 was adverse. (ii) For issuance of an appropriate writ/s, order/s, direction/s or writ in the nature of mandamus commanding upon the respondents 1 for expunging the ACR of the petitioner for the year, 2020-2021 and 2021-2022 because the adverse ACR has not been communicated to the petitioner and the petitioner has been denied reasonable opportunity to file his representation with regard to adverse ACR, resulting in denial of his promotion to the post of Under Secretary. (iv) For issuance of an appropriate writ/s, order/s, direction/s or writ in the nature of mandamus commanding upon the respondents to grant all consequential benefits of notional promotion to the post of Under Secretary w.e.f., the date on which the juniors to the petitioner have been granted promotion to the post of Under Secretary including seniority and also to pay difference of salary on account of such consequential promotion, because without any fault on the part of the petitioner, he has been illegally denied promotion to the post of Under Secretary in a flagrant violation of principles of service jurisprudence. 3. The brief fact of the case is that the petitioner was appointed as an Assistant on 11.12.1995. Pursuant to that he gave his joining on 13.12.1995 and same was accepted vide office order dated 05.01.1996. Consequent of re- organization of State of Bihar, the services of the petitioner was allocated to the State of Jharkhand and vide Office Order as contained in Memo No.843 dated 13.11.2000, the petitioner was relieved w.e.f. 13.11.2000 and on the very next day, i.e., 14.11.2000, the petitioner submitted his joining in Human Resources Development Department, Govt. of Jharkhand. After completion of 12 years of satisfactory service, the petitioner was granted the benefit of 1st Assured Career Progression vide office order as contained in Memo No. 122 dated 20.05.2008. He was also granted the benefit of 2nd ACP/MACP vide office order as contained in Memo No.79 dated 06.04.2016 on completion 20 years of service. Thereafter, the petitioner was transferred from Human Resources Development Department to Department of Home, Govt. of Jharkhand Vide office order dated 31.12.2008 and in compliance of the same he joined to his post. Again, the petitioner was granted regular promotion 2 to the post of Section Officer from the post of Assistant vide Notification No. 12221 dated 01.11.2012 and in compliance of the same, the petitioner submitted his joining to the post of Section Officer in Home Department itself and vide office order as contained in Memo No.5483 dated 24.11.2012 issued by the Under Secretary, Department of Home, the joining of the petitioner was accepted as Section Officer. Vide Notification No.269 dated 10.01.2017 issued by the Under Secretary, the petitioner was again transferred from Home Department, Jharkhand to the Department of Personnel Administrative Reforms and Rajbhasha and petitioner submitted his joining on 23.01.2017 itself. The petitioner was again transferred vide Notification No.302 dated 21.01.2022 from Department to Personnel, Administrative Reforms and Rajbhasha Department to Jharkhand State Election Commission, Ranchi and in compliance of the same, he submitted his joining on 01.02.2022, which was accepted vide office Order as contained in Memo No.161 dated 08.02.2022 issued by the Secretary, State Election Commission. A Departmental Promotion Committee was convened on 27.09.2022, wherein names of 48 Section Officers were considered for grant of promotion to the post of Under Secretary including the petitioner also. However, vide Office Order as contained in Memo 6312 No. 6318 dated 07.10.2022 issued by Under Secretary, Personnel Department, the promoted persons list have been issued, but the name of the petitioner does not find place in the said list.
Legal Reasoning
4. Mr. Bhanu Kumar, learned counsel for the petitioner submits that when the case of the petitioner did not find 3 place in the promotion list, he represented before the respondents for grant of promotion which was however denied and thereafter he made an application under RTI to obtain minutes of DPC meeting which was held on 27.09.2022 and the same was supplied by them and the petitioner came to know that his name was not considered for promotion to the post of under Secretary on the sole ground of adverse ACR though the same was never communicated to the petitioner at the relevant time. He further submits that from the detailed report sent to him including the ACR for the year 2020-21 and 2021-2022 (part) and 2022-2023 indicates that while the petitioner was posted in the office of State Election Commission, Jharkhand for the year 2021-2022 (part) and 2022-23 (01.02.2022 to 31.05.2022) has been recorded as an Outstanding Officer by the Reporting and Reviewing Officer and same has been duly accepted by the Accepting Officer. 5. Learned counsel further draws attention of this Court towards the office memorandum dated 14.05.2009 issued by the Director, DoPT which was issued in view of the ratio laid down by the Hon’ble Apex Court in the case of Dev Dutta Versus Union of India (Civil Appeal No. 7631 of 2002) and submits that the full ACR which is now known as APARs including the overall grade and assessment of integrity was mandatory to be communicated to the concerned officer after the report is complete. In the instant case, it is a specific case of the petitioner that the same was never communicated. The petitioner has taken a specific stand that from perusal of 4 the ACR for the year 2020-21 and 2021-2022 (part) it clearly shows that the Reporting Officer has given his remark regarding the petitioner as an Outstanding Officer, who can be relied upon, honest, dutiful and outstanding officer, but the remarks of Reviewing Officer as well as Accepting Officer, who was the same person and who had strong bias and prejudice against this petitioner who mentioned that conduct and honesty of the petitioner is doubtful, tendency to keep the files pending, incumbent of the post is of average category. 6. Mr. Bhanu Kumar specifically contended that the same adverse reports for the year 2021-2022 were never communicated to the petitioner which is a mandatory provision. However, the same specific statement made in para 19 and 20 has not been rebutted by the respondents. He reiterated that as per the OM dated 14.05.2009 the full APRs including the overall grade and assessment of integrity has to be mandatorily, communicated to the concerned officer, however the same has not been done in the instant case. Further, in spite of several representations made by the petitioner, they have not responded to and since the juniors have been given promotion; as such learned counsel submits that the respondent may be directed to consider the case of promotion of the petitioner to the post of under Secretary with effect from the date on which the juniors to him have been granted promotion. 7. Learned counsel for the respondents relying upon the counter-affidavit submits that the meeting of the Departmental Promotion Committee was convened on 5 27.09.2022 under chairmanship of Member Board of Revenue and on the said meeting it was found that the petitioner is having adverse ACR for the year 2020-21 and 2021-2022; wherein it has been observed by the Reviewing Office and Accepting Office that "Conduct and Honesty of Petitioner is doubtful, tendency to keep files pending, incumbent of the post is of average category." As such, the petitioner was declared ’Not Fit for promotion’. He further submits that the petitioner was not working satisfactorily as per service regulation, service confirmation and service calculation and was unnecessarily delaying the execution of files in the department therefore vide Departmental Letter No. 8083 dated 25.11.2021 a show cause was also issued to the petitioner directing him to file a reply within three days. 8. Heard learned counsel for the parties and have perused the documents available on record and the averments made in the respective affidavit and also the OM dated 14.05.2009 with respect to maintenance and preparation of annual performance appraisal reports/ communication of all entries for fairness and transparency in public Administration. For brevity, the relevant part of the said OM dated 14.05.2009 is extracted hereinbelow:- “OFFICE MEMORANDUM Subject:- Maintenance and preparation of Annual Performance Appraisal Reports- communication of all entries for fairness and transparency in public administration. The undersigned is directed to invite the attention of the Ministries/Departments to the existing provisions in regard to preparation and maintenance of Annual Confidential Reports which inter-alia provide that only adverse remarks should be communicated to the officer reported upon for representation, if 6 any. The Supreme Court has held in their judgment dated 12.5.2008 in the case of Dev Dutt vs Union of India (Civil Appeal No.7631 of 2002) that the object of writing the confidential report and making entries is to give an opportunity to the public servant to improve the performance. The 2nd Administrative Reforms Commission in their 10th Report has also recommended that the performance appraisal system for all services be made more consultative and transparent on the lines of the PAR of the All India Services 2. Keeping in view the above position, the matter regarding communication of entries in the ACRS in the case of civil services under the Government of India has been further reviewed and the undersigned is directed to convey the following decisions of the Government- (i) The existing nomenclature of the Annual Confidential Report will be modified as Annual Performance Assessment Report (APAR). (ii) The full APAR including the overall grade and assessment of integrity shall be communicated to the concerned officer after the Report is complete with the remarks of the Reviewing Officer and the Accepting Authority wherever such system is in vogue Where Government servant has only one supervisory level above him as in the case of personal staff attached to officers, such communication shall be made after the reporting officer has completed the performance assessment. (iii) The Section entrusted with the maintenance of APARs after its receipt shall disclose the same to the officer reported upon. (iv) The concerned officer shall be given the opportunity to make any representation against the entries and the final grading given in the Report within a period of fifteen days from the date of receipt of the entries in the APAR. The representation shall be restricted to the specific factual observations contained in the report leading to assessment of the officer in terms of attributes, work output etc. While communicating the entries, it shall be made clear that in case no representation is received within the that he/she has no fifteen days, representation to make. If the concerned APAR Section does not receive any information from the concerned officer on or before fifteen days from the date of disclosure, the APAR will be treated as final. it shall be deemed (v) The new system of communicating the entries in the APAR shall be made applicable prospectively only with effect from the reporting period 2008-09 which is to be initiated after 1" April 2009. (vi) The competent authority for considering adverse remarks under the existing instructions may consider the representation, if necessary, in consultation with the reporting and/or reviewing 7 officer and shall decide the matter objectively based on the material placed before him within a period of thirty days from the date of receipt of the representation. (vii) The competent authority after due consideration may reject the representation or may accept and modify the APAR accordingly. The decision of the competent authority and the final grading shall be communicated to the officer reported upon within fifteen days of receipt of the decision of the competent authority by the concerned APAR Section. 3. All Ministries/Departments are requested to bring to the notice of all the offices under them for strict implementation of the above instructions. Emphasis Supplied 9. After going through the aforesaid memorandum, it appears that in para (ii) it has been specifically stipulated that the full APAR including the overall grade and assessment of integrity shall be communicated to the concerned officer after the Report is complete with the remarks of the Reviewing Officer and the Accepting Authority wherever such system is in vogue and where Government servant has only one supervisory level above him as in the case of personal staff attached to officers, such communication shall be made after the reporting officer has completed the performance assessment. It further transpires that the petitioner has taken a specific stand on the issue of the adverse ACR for the year 2020-2021 and 2021-2022 (part); that it was never communicated to the petitioner which is a mandatory provision as per law and has not been denied by the respondents and the counter-affidavit which has been filed by the respondents does not indicate anywhere that they have denied the specific statement as stated hereinabove. In the case of Dev Dutt (Supra), it has been specifically held by the Hon’ble Apex Court that the object 8 of writing the confidential report and making entries is to give opportunity to the public servant to improve the performance. Even the office memorandum dated 14.05.2009, refers the 2nd Administrative Reforms Commission report and in their 10th report it has also recommended that the performance appraisal system for all services be made more consultative and transparent on the lines of PAR of All Indian services and due to that very reason; a guideline has been issued vide the said office memorandum. 10. Having regard to the aforesaid discussions, the instant writ application stands allowed. The respondents are directed to consider the case of the petitioner for promotion to the post of Under Secretary from the post of Section Officer in the scale of PB-III Rs. 15,600-39,100 +6600/- (Level-11 as per VII CPC); after expunging the ACR of the petitioner for the year, 2020-2021 and 2021-2022 because the adverse ACR has not been communicated to the petitioner and the petitioner has been denied reasonable opportunity to file his representation with regard to adverse ACR and also grant all consequential benefits of notional promotion to the post of Under Secretary w.e.f., the date on which the juniors to the petitioner have been granted promotion to the post of Under Secretary including seniority. 11. As a result, the instant writ application stands
Decision
disposed of in the manner indicated herein above. (Deepak Roshan, J.) Amardeep/- 9