Allowed

Chandan Sarma v. the State of Assam and 20 Ors.

Gauhati HC2 Feb 2018WP(C)/5749/2015

Case brief

AI extract

What is this about?

Petitioner challenged his non-promotion to Executive Engineer compared to juniors due to initial adverse ACRs. Court held that after ACRs were upgraded via review, meeting the class-A bench mark, the petitioner deserved consideration. Since he was promoted later, court directed retrospective promotion to match dates his juniors were promoted.

What did the court decide?

Petitioner's promotion dated 17.10.2017 to be given retrospective effect from 10.02.2014 with consequential benefits.

Chandan Sarma Vs the State of Assam and 20… — Pension and Retirement Benefits | Gauhati HC (2018)

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GAHC010021782015

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C) 5749/2015

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1:CHANDAN SARMA

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S/O SRI DHIRESWAR DEB SARMA R/O KUMARPARA, PACH ALI HOUSE NO. 179, F.A. ROAD, P.O. BHARALUMUKH, GUWAHATI - 781001, PRESENTLY SERVING AS ASSISTANT ENGINEER, PWD ROADS, CHANDMARI, GUWAHATI.

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VERSUS

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1:THE STATE OF ASSAM AND 20 ORS

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REP. BY THE COMMISSIONER AND SPECIAL SECRETARY TO THE GOVT. OF ASSAM, PUBLIC WORKS DEPARTMENT BUILDING AND N.H., DISPUR GUWAHATI-06.

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Advocate for the Petitioner : MR.T N SRINIVASAN

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Advocate for the Respondent : MR.H K MAHANTA

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BEFORE

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HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA

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ORDER

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Date : 02-02-2018

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Heard Mr. M. K. Choudhury, learned senior counsel for the petitioner as well as Mr. N. Goswami, learned counsel for the respondent Nos.1, 3, 4, 5 and 6 and Ms. V. L. Singh, learned counsel for the respondent No.2. None appears for the private respondents.

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The office note indicates that service of notice is deemed to be complete against the private respondents.

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The petitioner, who was holding the post of Assistant Executive Engineer (Civil) under the Public Works Department, Assam, was placed at Sl. No. 44 in the Gradation List dated 05.02.2014, much above the private respondent Nos. 11 to 21. Thereafter, the respondent No.6 held a selection process for filling up of 16 posts of Executive Engineers. The petitioner was also considered by the DPC for promotion from Assistant Executive Engineer to Executive Engineer. However, the private respondents were promoted to the post of Executive Engineer and not the petitioner.

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Petitioner being aggrieved, filed a representation to the respondents asking the reason why he had not been promoted to the post of Executive Engineer. The petitioner was thereafter informed that he had not been promoted as he had adverse remarks in the ACRs for the years 2008-09, 2009-10, 2010-11 and 2011-12.

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The petitioner was also furnished with the copies of his ACRs for the relevant years. The petitioner, thereafter, submitted representations to the respondent authorities against the adverse remarks recorded in his ACRs on 05.09.2014. As the State respondents did not take any decision on the representations filed by the petitioner against the adverse remarks recorded in his ACRs, the petitioner filed the present writ petition on 09.09.2015.

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The petitioner’s counsel submits that during the proceedings of this case, the petitioner’s ACRs for the relevant period of time were reviewed and upgraded by the authorities. The petitioner’s counsel submits that the petitioner has also been promoted to the post of Executive Engineer (Civil) on 17.10.2017 against a subsequent vacancy. Petitioner’s counsel submits that as the petitioner’s ACR’s grading have been upgraded on review, the petitioner should be considered for promotion to one of the 16 vacant posts of Executive Engineer on the basis of the selection process that had taken place on 05.02.2014.

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Petitioner’s counsel submits that prior to communication of the adverse remarks against the petitioner, the total point secured by the petitioner in the DPC was 16.94. However, after review and upgradation of the petitioner’s ACRs, the total point secured by the petitioner for the ACR’s in question was 21.44. He, thus, submits that the petitioner having got the required bench mark, he has to be categorized as a Class-A Officer as per the Notification dated 28.04.2003 issued by the PWD, Govt. of Assam and promoted on the basis of the selection process that was held on 05.02.2014, which was to fill up 16 numbers of vacant posts of Executive Engineer (Civil).

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Petitioner’s counsel submits that the petitioner should be considered by the review DPC for

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promotion to one of the 16 posts that were considered by the DPC vide the selection process held on 05.02.2014. In the alternative, he submits that promotion should be given to the petitioner with retrospective effect from the date his juniors (private respondents) were promoted.

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Counsel for the petitioner submits that the present case is covered by the order dated 25.05.2015 passed in WP(C) No. 1626/2014. He submits that in fact, the petitioner in WP(C) No.1626/2014 is junior to the present writ petitioner.

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Mr. N Goswami, counsel for the respondents fairly submits that the order dated 25.05.2015 passed in WP(C) No. 1626/2014 is applicable to the present case and the present case is covered by the above order.

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I have heard the counsels for the parties.

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The facts of the present case and the facts in WP(C) No. 1626/2014 are similar. Further, the subject matter in dispute in both the cases arises out of the same selection process. It is also not disputed that the petitioner in WP(C) No. 1626/2014 is junior to the petitioner herein. The upgradation of the petitioner’s ACRs on the basis of the representation submitted by him shows that after review and upgradation of the petitioner’s ACRs, the total points secured by the petitioner is now 21.44, as compared to the earlier 16.94 points secured by him. The bench mark for promotion from the post of Assistant Executive Engineer to Executive Engineer is for a person to be categorized as a Class-A officer, wherein, the points to be secured is 21.3. The petitioner’s ACRs having been upgraded to 21.44 on review, the petitioner has to be promoted to the post of Executive Engineer as per the Rules and guidelines laid down by the said respondents, especially when his juniors were promoted under the same selection process.

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In view of the fact that the petitioners un-communicated adverse entries have been upgraded and by relying on the judgment of the Apex Court in Dev Dutt Vs. Union of India, reported in (2008) 8 SCC 725, the State respondents are bound to hold a review DPC to reconsider the case of the petitioner for promotion from the post of Assistant Executive Engineer to Executive Engineer to the vacancies that occurred and into which the petitioner’s juniors had been promoted. However, as the petitioner has been promoted to the post of Executive Engineer during the proceedings of the case, there is no need to set aside the earlier promotion orders of the petitioner’s juniors (respondents) and to consider the selection process afresh.

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In view of the above, ends of justice would be met if the petitioner’s promotion as Executive

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Engineer issued vide order dated 17.10.2017 is given retrospective effect from the date his juniors were promoted, i.e., vide order dated 10.02.2014.

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Accordingly, in view of the reasons stated above, the State respondents are directed to convene a review DPC and to consider the case of the petitioner for giving him retrospective promotion w.e.f. 10.02.2014 with all consequential benefits.

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The writ petition is accordingly allowed.

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JUDGE

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Comparing Assistant

Chandan Sarma v. the State of Assam and 20 Ors.

Case brief

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Chandan Sarma v. the State of Assam and 20 Ors.

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