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Suresh Chandra Das v/s The State of Tripura to be represented by the Chief Secretary to the Government of Tripura, Civil Secretariat, New Secretariat Complex, West Tripura & Another


    WP(C) No. 1041 of 2019

    Decided On, 20 March 2020

    At, High Court of Tripura

    By, THE HONOURABLE CHIEF JUSTICE MR. AKIL KURESHI

    For the Petitioner: S.C. Das, Advocate. For the Respondents: D. Bhattacharya, G.A.



Judgment Text


Judgment & Order (Oral)

[1] Petitioner is a Government servant. He has challenged a decision dated 24.12.2018 of the Government of Tripura, Department of General Administration (Personnel & Training) under which in connection with the petitioner’s confidential record, the Government granted partial relief. To the extent the relief was refused, the petitioner is aggrieved.

[2] This petition arises in following background:

The petitioner is presently working as Additional District Magistrate & Collector, South Tripura District. At the relevant time, he was Senior Deputy Magistrate in Tripura State Civil Service. In the ACRs for the years 2010-11 and 2011-12 there were adverse entries. His overall assessment for the year 2012-13 was downgraded. He combined all these grievances in WP(C) No.55 of 2015. This petition was disposed of by the learned Single Judge by a judgment dated 29.01.2018, relevant portion of which reads as under:

“23. Non-communication of the entire ACR to the petitioner was therefore, in view of the principle as laid down in Dev Dutt (supra), is arbitrary because it has violated the fairness in action, which is inalienable essence of Article 14 of the Constitution. However in this case, on the basis of the communication, the petitioner without raising any protest, submitted the representation in respect of the „adverse? entries made in the ACRs for the year 2010-11 and 2011-12. Those representations were rejected allegedly on accepting the views of the respondent No.10, the reporting officer against whose comments the representations were made. So far the ACR of the year 2012-13 is concerned, that was not communicated. Such non-communication is grossly arbitrary and violation of the principle of natural justice. The said action of the respondent-authorities cannot be approved by this court. The petitioner should have been given opportunity for filing the representation against the downgrading as recorded in the said ACR for the year 2012-13. The petitioner for such non-communication has been deprived of valuable right as WP(C) 55 of 2015 consolidated by the apex court in Dev Dutta (supra) and subsequent decisions. In Dev Dutta (supra), as very correctly Mr. Das, learned counsel appearing for the petitioner has underlined, it has been laid down that that the authority concerned shall decide the representation in a fair manner and within a reasonable period. It has been held by the apex court in unequivocal terms that the representation must be decided by an authority higher than the one who made the entries, otherwise there would be likelihood that the representation will be summarily rejected without due consideration and in that event it would be an appeal from Ceasar to Ceasar. While considering the representation on the adverse entries entered in the ACRs for the year 2010-11 and 2011-12, the representation was sent for views of the reporting officer and it appears from the impugned orders that views of the reporting officer have been given a primacy. In the memorandum dated 28.04.2014 [Annexure-23 to the writ petition], relating to the “adverse” remarks in the ACR for the year 2010-11, the Joint Secretary to the Government of Tripura has clearly observed that the communication of the reporting officer has been considered for disposal of the representation. The similar mode has been followed while disposing the representation of the petitioner against the adverse entries made in the ACRs for the year 2011-12 by the memorandum dated 04.12.2013 [Annexure-26 to the writ petition], inasmuch as against the averment of the petitioner, WP(C) 55 of 2015 in this regard, the respondent-authorities observed silence and did not furnish any other revealing fact.”

[3] As per this judgment, the Government had to reconsider the question of downgrading of the overall assessment of the petitioner for the year 2012-2013 and also to reconsider the adverse entries made in the ACRs for the years 2010-11 and 2011-12 for which purpose the petitioner could make a fresh representation. The petitioner made a representation dated 16.03.2018 in which he merely gave full background of the High Court judgment and pointed out that the petitioner has made a separate representation. In substance the petitioner’s representation was one dated 13.08.2018 in which in connection with the ACRs for the years 2010-11 and 2011-12 he made the following submissions:

“For that in paragraph 13 of the Judgment and Order passed on 29.01.2018 in WP(C) No.55 of 2015, the Hon’ble High Court quoted some judgments of the Hon’ble Supreme Court of India laying down the legal procedure for recording adverse entries in the ACRs of officers. The extracts of the Supreme Court judgment, particularly the underlined portions of the extracts, clearly show that no adverse entry can be made in an officer’s ACR without giving the officer concerned a prior opportunity of showing cause. That the officer reported upon was given a prior opportunity of showing cause must be made a part of the ACR. While making adverse entries in the petitioner’s ACRs for the years 2010-11 and 2011-12 no such opportunity of confronting the adverse remarks was given to the petitioner. None of the said 2 ACRs have any record to show that the petitioner was given an opportunity of confronting the adverse entries. What the petitioner submits herein is that the legal procedure for recording the adverse entries in his ACRs for the years 2010-11 and 2011-12 was totally violated.

On account of violation of the legal procedure for recording adverse entries, the Hon’ble High Court vide paragraph 24 of its Judgment set aside the Memorandum dated 28.04.2014 (relating to the ACR for the year 2010-11) and the Memorandum dated 04.12.2013 (relating to the ACR for the year 2011-12) of the GA (P&T) Department.”

[4] The Government took a fresh decision dated 26.06. 2018 and which is challenged in this petition, reads as under:

M E M O R A N D U M

“Subject : Representation for up-gradation in the ACR for the years 2010-11, 2011-12 & 2012-13 in respect of Shri Suresh Ch. Das, TCS Gr. I (Now SSG) Addl. Director, SC Welfare Department, Tripura, Agartala.

WHEREAS, Shri Suresh Chandra Das, TCS Gr.I (now SSG) submitted representation dated 31/3/2014, 18/09/2013 & 16/03/2018 for up-gradation in the ACRs for the years 2010-11, 2011-12 & 2012-13 respectively.

AND

WHEREAS, in compliance of the Order dated 29/01/2018 of the Hon?ble High Court of Tripura in the case no. WP(C) 55 of 2015, the representation of Shri Suresh Chandra Das, TCS towards upgradation of the remarks of the ACRs for the years: 2010-11, 2011-12 & 2012-13 has been examined by the Government which reference to the remarks in the said ACRs and also the representation.

NOW THEREFORE, after examining the all aspects the following are decided:-

(i) In regard to the ACR for the year 2010-11, there is no merit on the representation. Therefore, the grading awarded in the ACR for the year 2010-11 shall “Stand Good”

(ii) In regard to grading in the ACR for the year 2011-12 the grading “Average” shall be upgraded as “Good”

(iii) In regard to comments in the ACR of the year 2012-13 the grading “Good” shall be upgraded as “Very Good”

[5] From the above order it can be seen that the Government ceded to the petitioner’s request for maintaining his overall grading for the year 2012-2013 without downgrading. However, with respect to the petitioner’s request for deleting the adverse entries in the ACRs for the years 2010-11 and 2011-12 the Government was unmoved. We are, therefore, concerned only with the retention of adverse ACRs in the service record of the petitioner for the said two years. In this context, as noted, virtually sole ground raised in the representations made by the petitioner was that no prior opportunity or notice was given to the petitioner before making such entries in the record. His counsel submitted that as per settled law the petitioner should have been put to notice before making such entries which in the present case was not done and, therefore, the adverse remarks should be dropped.

[6] On the other hand, Mr. D. Bhattacharya, learned Government Advocate opposed the petition contending that the High Court directed reconsideration of the adverse remarks. The petitioner made a fresh representation which was considered by the authority. No reason was found to delete the adverse remarks. Petition may, therefore, be dismissed. In this context, counsel for the petitioner relied on certain decisions reference to which would be made at a later stage.

20th March, 2020

[7] As noted, the petitioner’s grievance revolves around the adverse entries in the ACRs for the years 2010-11 and 2011- 12. The High Court had given an opportunity to the petitioner to make his representation against such adverse entries which would be considered by the competent authority. In the representation that the petitioner made sole ground raised by him was that proper procedure before recording such adverse ACRs was not adopted. In the opinion of the petitioner no such adverse entry can be made without giving the concerned employee a prior opportunity of showing cause. If the argument of the petitioner is that an adverse remark in the service record of an employee cannot be confirmed without giving him an opportunity of making representation against such remark, he is absolutely correct and in the present case such procedure has also been followed. When previously such lacuna was detected by the High Court, High Court gave suitable directions for providing opportunity to the petitioner to make representation against such adverse entries and required the competent authority to consider such representation. However, if the contention of the petitioner is that even before such adverse entries are registered in the service record of an employee an opportunity of hearing must be given to him, I do not find any legal backing for such proposition. As per settled procedure adverse remarks are to be made and conveyed to the concerned officer. This conveying of adverse remarks would have dual purpose. Firstly, it would enable him to make representation if he thinks that such remarks were not justified. The remarks may be deleted if his representation is accepted. The second purpose would be to enable the concerned Government employee to mend his ways and to improve his performance in the areas where his service is found wonting. Refer to the judgment in case of State Bank of India and others versus Kashinath Kher and others (1996) 8 SCC 762. There is no procedure for giving an opportunity to the concerned employee even before such remarks are made.

[8] In this context the decisions cited by the counsel for the petitioner may be examined. In case of State of U.P. versus Yamuna Shanker Misra and another reported in (1997) 4 SCC 7, following observations have been made:

“It would, thus, be clear that the object of writing the confidential reports and making entries in the character rolls is to give an opportunity to a public servant to improve excellence. Article 51-A (j) enjoins upon every citizen the primary duty to constantly endeavour to prove excellence, individually and collectively, as a member of the group. Given an opportunity, the individual employee strives to improve excellence and thereby efficiency of administration would be augmented. The officer entrusted with the duty to write confidential reports, has a public responsibility and trust to write the confidential reports objectively, fairly and dispassionately while giving, as accurately as possible, the statement of facts on an overall assessment of the performance of the subordinate officer. It should be founded upon facts or circumstances. Though sometimes, it may not be part of the record, but the conduct, reputation and character acquire public knowledge or notoriety and may be within his knowledge. Before forming an opinion to be adverse, the reporting officers writing confidentials should share the information which is not a part of the record with the officer concerned, have the information confronted by the officer and then make it part of the record. This amounts to an opportunity given to the erring/corrupt officer to correct the errors of the judgment, conduct, behaviour, integrity or conduct/corrupt proclivity. If, despite being given such an opportunity, the officer fails to perform the duty, correct his conduct or improve himself, necessarily the same may be recorded in the confidential reports and a copy thereof supplied to the affected officer so that he will have an opportunity to know the remarks made against him. If he feels aggrieved, it would be open to him to have it corrected by appropriate representation to the higher authorities or any appropriate judicial forum for redressal. Thereby, honesty, integrity, good conduct and efficiency get improved in the performance of public duties and standard of excellence in services constantly rises to higher levels and it becomes a successful tool to manage the services with officers of integrity, honesty, efficiency and devotion.”

The observations in the said judgment for sharing with the officer information before making the remarks, were in the context of integrity or corrupt practices and cannot be projected for all kinds of adverse remarks.

[9] In case of Dev Dutt versus Union of India and others reported in (2008) 8 SCC 725, the Supreme Court highlighted that an adverse remark in the service record is to be communicated to the public servant and he should have a right to make a representation which must be decided in a fair manner within a reasonable period. Such representation should be decided by the authority higher than the one who has made the adverse remarks. In the said case, the concerned employee was bypassed for promotion relying on adverse entries which were not communicated. The Supreme Court, therefore, gave an opportunity to him to make a representation against such entry and thereafter to reconsider his case for promotion.

[10] In case of Abhijit Ghosh Dastidar versus Union of India and others reported in (2009) 16 SCC 146, relying on the judgment in case of Dev Dutt (supra) it was reiterated that non-communication of entries in the ACRs lead to civil consequences as the same may have effect on his promotion prospects. It was further observed that the grading of “Good” which is below the benchmark of “Very Good” for promotion ought to have communicated to the Government servant. In absence of communication such entry should

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not have been taken into consideration for promotion. [11] In case of Sukhdev Singh versus Union of India and others reported in (2013) 9 SCC 566, the Supreme Court held that every entry in the ACR whether poor, fair, average, good, very good or outstanding should be communicated to the employee within a reasonable period. Communication of only adverse entry is not enough. [12] In case of Dr. Umesh Barman versus The State of Assam and others in WP(C) No.6515 of 2010 decided by the learned Single Judge of the Gauhati High Court on 29.03.2011 directions were given to the authorities to review the remarks in view of the fact that the adverse entries recorded in the ACR of the petitioner were expunged. On such basis the overall grading of the employee would have to be reviewed. [13] None of these judgments thus support the legal proposition canvassed by the counsel for the petitioner that even before making adverse entry an opportunity of hearing must be given to the concerned Government employee. In his representation against the adverse entries for the years 2010-11 and 2011-12 this was the sole ground raised by him. He had not raised any factual dispute about the justness or correctness of the adverse entries. He had not alleged any personal or legal mala fades on part of the concerned authorities. In short, he had confined his representation to a single legal contention which I have turned down. [14] Under the circumstances, there is no scope for interference in this petition. Petition is, therefore, dismissed. [15] Pending application(s), if any, also stands disposed of.
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