Allowed

Provat Singha @ Prabhat Kumar Singha v. the State of Assam and 8 Ors.

Gauhati HC14 Dec 2021WP(C)/1416/2020

Case brief

AI extract

What is this about?

The Gauhati High Court set aside the rejection of a Junior Assistant's promotion request due to non-communication of adverse ACR entries. It directed the State to communicate these entries, allow a representation, and review the promotion decision within specified timelines.

What did the court decide?

Direct respondents to communicate adverse ACR entries, allow representation within three weeks, consider review order within one month, and hold a review Selection Committee within two months from dec

Provat Singha @ Prabhat Kumar Singha Vs the… — Pension and Retirement Benefits | Gauhati HC (2021)

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GAHC010045842020

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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)/1416/2020

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PROVAT SINGHA @ PRABHAT KUMAR SINGHA S/O- LT. JAYANTA SINGHA, R/O- VILL. AND P.O. NITYANANDAPUR PT-I, DIST.- HAILAKANDI, ASSAM.

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VERSUS

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THE STATE OF ASSAM AND 8 ORS. TO BE REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, GENERAL ADMINISTRATION (B) DEPTT., DISPUR, GHY.-06.

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2:THE COMMISSIONER OF BARAK VALLEY DIVISION DISPUR GHY.-06. 3:THE DY. COMMISSIONER HAILAKANDI PIN- 788151. 4:ADDL. DY. COMMISSIONER HAILAKANDI AND CHAIRMAN OF SELECTION COMMITTEE PIN- 788151.

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5:THE S.D.O. HAILAKANDI MEMBER SECY. PIN- 788151. 6:PUSHPA SINGHA D/O- LT. BROJEN SINGHA LALA TOWN W/NO. III (CHENGBIL) P.O.- MADARIPAR

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P.S. LALA DIST- HAILAKANDI PIN- 788163.

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7:RAJIB BHATTACHARJEE S/O- LT. RAMAPADA BHATTACHARJEE HAILAKANDI TOWN W/NO. IX KACHARI ROAD PO AND PS- HAILAKANDI PIN- 788151. 8:LALZAR LEIN AIMOL S/O MUALTIN AIMOL VILL. AND P.O.- TARANATHPUR DIST.- CACHAR PIN- 788117.

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9:MINARA BEGUM LASKAR W/O LATE SAIF UDDIN BARBHUIYA HAILAKANDI TOWN WARD NO. XI P.O. RATANPUR ROAD P.S. HAILAKANDI PIN- 788155

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Advocate for the Petitioner : MR M J QUADIR

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Advocate for the Respondent : GA, ASSAM

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BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

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ORDER

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Date : 14-12-2021

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Heard Mr. MJ Quadir, learned counsel for the petitioner as well as Mr. JK Goswami, learned counsel for the respondent Nos. 2 to 4 and Mr. AK Phukan, learned counsel for the respondent No. 1.

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The petitioner’s case is that the petitioner is working as a Junior Assistant in the office of the Deputy Commissioner, Hailakandi. The petitioner was

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thereafter considered for promotion to the post of Senior Assistant. The Selection Committee in its meeting minutes dated 14.01.2020 did not recommend the petitioner for promotion on the ground that some adverse comments were found in the ACR of the petitioner.

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The petitioner’s juniors were thereafter promoted to the post of Section Assistant vide order dated 15.02.2020, on the basis of the recommendation made by the Selection Committee in its meeting dated 14.01.2020.

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The petitioner’s counsel submits that the respondent Nos. 3 and 4 in para 7 of their affidavit-in-opposition have stated that the petitioner was not promoted due to adverse comments made in his ACR. He submits that in terms of the judgment of the Apex Court in Dev Dutt vs. Union of India & Ors. , reported in (2008) 8 SCC 725, the petitioner should have been given an opportunity to make a representation against the adverse entries made in his ACRs and to pray for its upgradation. However, as the same has not been done, the principles of natural justice have been violated. He prays that the present writ petition be disposed of, with a direction to the respondent authorities, to communicate the petitioner’s ACR containing the adverse entries, so as to enable the petitioner to make a representation against the same. Thereafter, the respondents should consider the petitioner’s representation and take a decision on the same.

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Mr. JK Goswami, learned counsel for the respondent Nos. 2 to 4 and Mr. AK Phukan, learned counsel for the respondent No.1 submit that they have got no objection to the prayer made by the petitioner’s counsel in view of the judgment of the Apex Court in Dev Dutt (supra).

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On perusing the Selection Committee meeting minutes dated 14.01.2020,

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it is seen that the petitioner was not recommended for promotion on the ground that there was some adverse comments being found in the petitioner’s ACR.

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In para 7 of the affidavit-in-opposition of the respondent Nos. 3 and 4, it has been stated that the Selection Committee rejected the name of the petitioner as some adverse comments were found in the opinion column in the ACR as recorded by the recording authority, i.e., (i) “he should continue in the same post for the time being”, and (ii) “he need more experience before being promoted”.

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The Apex Court in Dev Dutt (supra) has held that 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 a entry may adversely affect the employees in two ways: (i) 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 and (ii) he would have an opportunity of making a representation against the entry if he finds it is unjustified and pray for its upgradation. Hence, the Apex Court held that noncommunication of an entry was arbitrary.

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The Apex Court further held in Dev Dutt (supra) that when an entry is communicated to the public servant, he should have a right to make a representation against the entry to the concerned authority, and the concerned authority must decide the representation in a fair manner and within a reasonable period. It also held that the representation must be decided by an authority higher than the one who gave the entry, otherwise the likelihood was that the representation will be summarily rejected without adequate consideration, as it would be an appeal from Caesar to Caesar.

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In view of the law laid down by the Apex Court in Dev Dutt (supra) , the respondents are directed to communicate to the petitioner the uncommunicated adverse entries made in the ACR and give him an opportunity to make a representation against the same. The communication should be made by the respondent authority to the petitioner within a period of three weeks from the date of receipt of a certified copy of this order. Thereafter, the petitioner shall submit his representation against the adverse entries within a further period of one week. The petitioner’s representation shall be considered by an authority, higher than the authority who recorded the adverse entries within a further period of one month. In the event the authority who decides the petitioner’s representation is of the view that the petitioner’s entries were not justified and requires upgradation, the same shall be done and a review Selection Committee should be held, to consider the case of the petitioner afresh for promotion to the post of the Senior Assistant, from the date of promotion given to his immediate junior, i.e., 15.02.2020.

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The review Selection Committee meeting and the entire process for promotion, if any, should be done within a further period of two months from the date of the decision taken by the authority deciding the petitioner’s representation.

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The writ petition stands disposed of accordingly.

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Comparing Assistant

Provat Singha @ Prabhat Kumar Singha v. the State of Assam and 8 Ors.

Case brief

What is this about?

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Provat Singha @ Prabhat Kumar Singha v. the State of Assam and 8 Ors.

Case brief

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