IN THE GAUHATI HIGH COURT

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1 IN THE GAUHATI HIGH COURT (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh) Case No: 1. Smt. Namita Rabha W/o Sri Lalit Chandra Basumatari, R/o Bongaon, Beltola, Guwahati , Dist Kamrup, Assam. Petitioner -Versus- 1. The Gauhati High Court represented by the Registrar General, Gauhati High Court, Guwahati. 2. The Registrar (Administration), Gauhati High Court, Guwahati, 3. The Joint Registrar (Administration-I), Gauhati High Court, Guwahati, 4. Sri Benudhar Bez, Senior Administrative Assistant, Gauhati High Court, 5. Sri Ahmadul Ala, Senior Administrative Assistant, Gauhati High Court, 6. Sri Diganta Goswami, Senior Administrative Assistant, Gauhati High Court. 7. Sri Utpal Buragohain, Senior Administrative Assistant, Gauhati High Court, 8. Sri Manoj Kr. Goswami, Senior Administrative Assistant, Gauhati High Court. 9. Sri Nirod Sarma, Senior Administrative Assistant, Gauhati High Court. 10. Sri Dilip Kr. Medhi, Senior Administrative Assistant, Gauhati High Court. 11. Smt. Moushumi Choudhury, Senior Administrative Assistant, Gauhati High Court. 12. Sri Deabo Dutta Boro, Senior Administrative Assistant, Gauhati High Court. 13. Sri Christopher Horo, Senior Administrative Assistant, Gauhati High Court. 14. Sri James Lal Sandam Neingaite, Senior Administrative Assistant, Gauhati High Court. Page 1 of 28

2 15. Sri Benjamin Nampui, Senior Administrative Assistant, Gauhati High Court.... Respondents WITH Case No: 1. Sri Anil Kumar Singha, S/o Late Chandramani Singha, R/o Hengerabari, Nizarapar Path, Guwahati Sri Surya Kanta Rajkumar, S/o Surakanta Rajkumar, Naba Nagar, Near P.H.E. Colony, Hengrabari, Guwahati Md. Arman Ali, S/o Samnur Ali, Village & P.O. Saniadi, P.S. Hajo, District Kamrup, Assam -Versus- Petitioners 1. The Gauhati High Court represented by the Registrar General, Gauhati High Court, Guwahati. 2. The Registrar (Administration), Gauhati High Court, Guwahati, 3. The Joint Registrar (Administration-I), Gauhati High Court, Guwahati, 4. Sri Benudhar Bez, Senior Administrative Assistant, Gauhati High Court, 5. Sri Ahmadul Ala, Senior Administrative Assistant, Gauhati High Court, 6. Sri Diganta Goswami, Senior Administrative Assistant, Gauhati High Court. 7. Sri Utpal Buragohain, Senior Administrative Assistant, Gauhati High Court, Page 2 of 28

3 8. Sri Manoj Kr. Goswami, Senior Administrative Assistant, Gauhati High Court. 9. Sri Nirod Sarma, Senior Administrative Assistant, Gauhati High Court. 10. Sri Dilip Kr. Medhi, Senior Administrative Assistant, Gauhati High Court. 11. Smt. Moushumi Choudhury, Senior Administrative Assistant, Gauhati High Court. 12. Sri Deabo Dutta Boro, Senior Administrative Assistant, Gauhati High Court. 13. Sri Christopher Horo, Senior Administrative Assistant, Gauhati High Court. 14. Sri James Lal Sandam Neingaite, Senior Administrative Assistant, Gauhati High Court. 15. Sri Benjamin Nampui, Senior Administrative Assistant, Gauhati High Court. 16. Sri Henghoumang Lhoujiem, Senior Administrative Assistant, Gauhati High Court. 17. Sri Dilip Kr. Baruah, Senior Administrative Assistant, Gauhati High Court. 18. Sri Jitu Bharali, Senior Administrative Assistant, Gauhati High Court. 19. Smt. Utpala Sonowal, Senior Administrative Assistant, Gauhati High Court. 20. Sri Kabir Rahman Bora, Senior Administrative Assistant, Gauhati High Court.... Respondents -BEFORE- HON BLE MR. JUSTICE N. CHAUDHURY For the Petitioners : Mr. D Das Sr. Advocate Mr. S Khound Advocate Page 3 of 28

4 For the Respondents : Mr. KN Choudhury Sr. Advocate Mr. RK Dubey Advocate Mr. SK Medhi SC, GHC Date of Hearing : Date of delivery of Judgment and Order : JUDGMENT AND ORDER (CAV) The two writ petitions, namely, WP(C) No. 4085/2013 and WP(C) No. 4644/2013 have been filed by four employees of this High Court espousing same grievance and challenging the same orders passed by High Court in administrative side thereby cancelling the promotion of the petitioners in the rank of Senior Administrative Assistant (hereinafter referred to as SAA ) and consequently giving promotions to the private respondents against the posts so vacated by them. WP(C) No. 4085/2013 has been preferred by one lone petitioner, Smti. Namita Rabha whereas WP(C) No. 4644/2013 has been preferred by three petitioners, namely, Sri Anil Kumar Singha, Sri Surya Kanta Rajkumar and Md. Arman Ali. As both the writ petitions have more or less identical pleadings with same prayer, the respondents have filed affidavit-inopposition in one case, namely, WP(C) No. 4085/2013 and the learned counsel for the respondents submitted at the time of argument that the affidavit-inoppositions filed in WP(C) No. 4085/2013 be considered as reply to the pleadings Page 4 of 28

5 of both the writ petitions. Under the aforesaid circumstances, the writ petitions are analogously heard on the basis of one set of pleadings. The WP(C) No 4085/2013 is considered to be the lead case for the purpose of hearing. 2. It is the case of the writ petitioners that they were initially appointed as extra typists by the High Court on various dates from 1989 to They claim to have been subsequently appointed as regular typists. On by another order passed by the Registrar General of the High Court, they were promoted and appointed as Lower Division Assistants w.e.f. the date of their joining in the scale of pay of Rs EB /- per month plus other allowances as admissible under the rules. In the mean time, the posts of Lower Division Assistant were renamed as that of Junior Administrative Assistant (hereinafter referred to as JAA ). They immediately joined to the promotional post. On by yet another order of the Registrar General of the High Court, all the petitioners were promoted and appointed as Senior Administrative Assistant (hereinafter referred to as SAA ) against various posts in the Pay Band of Rs /- per month with Grade Pay of Rs. 4300/- per month plus other allowances as admissible under the rules w.e.f. the date of their joining. It is needless to say that the petitioners immediately reported for joining to the promotional posts. According to the petitioners, their promotion to the post of SAA was preceded by a due process of selection conducted by a duly constituted committee of Hon ble Judges in accordance with the rules and executive instructions in force at the relevant point of time. Precisely, this was done in terms of Rule 18 of the Gauhati High Court Page 5 of 28

6 Services (Appointment, Conditions of Service and Conduct) Rules 1967 (hereinafter referred to as the Rules ). Rule 18 prescribes that the vacancies in the higher grades of Ministerial Services shall be filled up according to merit, and ordinarily by promotion from the lower grades, seniority being counted only when the merit is equal. This is why there was supersession of some senior incumbents in the cadre of JAA. 3. The problem started thereafter when as many as 12 JAAs submitted a representation on challenging the promotion of the petitioners and others by aforesaid notification dated and According to them, their supersession was bad for the following reasons:- (i) Remarks in Annual Confidential Report (for short, ACR ) for five years were taken into consideration for evaluating comparative merit but these ACRs were never communicated to the representationists. This is in contravention of the law laid down by the Hon ble Supreme Court in the case of Dev Dutt vs. Union of India & ors. reported in (2008) 8 SCC 725. (ii) Because of anomalies in the office notes, excessive number of incumbents were considered for promotion. Since there were only 12 vacancies to be filled up, 28 candidates only were in the zone of consideration but the DPC considered cases of 30 candidates including 6 candidates who did not complete 5 years of service in the rank of JAA. These 6 candidates include the present writ petitioners. Page 6 of 28

7 (iii) Improper formats were used for deducing comparative merit from ACRs and there were defects in giving remarks in the ACRs. Giving examples, it was shown that remarks against various attributes in ACRs of persons though almost same as recorded by the Recording Officer but they were differently graded as good, very good, outstanding etc. (iv) The prayer of the superseded employees for representing before larger committee like Administrative Committee was denied. With such objections supported by detailed and illustrated instances, the representation was filed asking for review of the entire matter involving promotion of 13 JAAs. The Registry of the High Court asked the present petitioners and other promotees to furnish their response in respect of the contentions raised in the aforesaid representation within a period of 15 days. The four petitioners herein submitted reply on stating that the whole process of promotion was dealt with by the then DPC and their names were forwarded by the establishment section. The DPC found them fit for being promoted and accordingly promotion order was issued. 4. According to the writ petitioners, subsequently they received impugned notice dated informing that as per resolution dated adopted by a committee of Judges and subsequent approval thereof by the Hon ble Chief Justice, they would be reverted to the post of JAA maintaining their inter-se-seniority. According to them, they were not furnished with any copy of resolution dated However, they immediately submitted a petition to Page 7 of 28

8 the authority on registering their protest and prayed for being heard. They subsequently came to know that on the Registrar (Administration) of the High Court who has been impleaded as respondent No. 2 herein, issued an order reverting the petitioners to their original cadre of JAA maintaining inter-se-seniority in that cadre with immediate effect. On the following day, i.e. on yet another order was issued by the same authority promoting and appointing 12 persons to the post of SAA who have been impleaded as private respondents No. 4 to 16 in the present writ petitions. Besides, vide Memo No. HC.V 8/2012/1626/Esstt. another set of 4 persons were promoted to the rank of SAA who have been impleaded as respondents No. 17 to 20 herein. By filing the two writ petitions the petitioners have challenged the two orders dated and referred to above whereby they were reverted from the post of SAA and subsequently the private respondents were promoted and appointed as SAA. 5. The case of the writ petitioners is that under Rule 18 of the Rules, promotion to the next higher grade or cadre can only be made on the basis of merit and seniority can be considered if merit position of any two candidates is equal. Moreover, Rules do not prescribe any particular period of qualifying service for promotion to the next higher cadre. According to the writ petitioners, no show cause notice was issued to them before reversion and the letter dated was merely an intimation after taking the decision to revert. The impugned actions, therefore, are vitiated for violation of the principles of natural justice. By furnishing illustration of the cases of Bhabendra Nath Das, Abdul Page 8 of 28

9 Jabbar, Jiban Das, Chabin Kalita, Hemen Deka and Dipak Prasad, the petitioners contended that all these persons were promoted to the rank of SAA although they had not completed 5 years of service in the feeder cadre. They were appointed as LDA (now designated as JAA) on and were promoted to the post of UDA (now designated as SAA) on Thus, they had less than 3 years of service in the feeder cadre of JAA but they were promoted to the cadre of SAA. The impugned action of reverting the petitioners to the cadre of JAA on the presumption that they had not completed 5 years of qualifying service in the feeder cadre, therefore, is not only without prescription of Rules but also contrary to the established past practice. It is a punishment in disguise without following the due process. With all these submissions, the petitioners prayed for issuance of appropriate writ so as to quash and set aside the impugned orders dated and Subsequently, on an additional affidavit was filed in WP(C) No. 4644/2013 by Sri Anil Kumar Singha annexing a copy of order dated which reads as follows: ORDER Dated Guwahati the 7 th August, 2013 No. HC.V-8/2012/1753/Estt. # # # The Hon ble the Chief Justice has been pleased to order that the zone of consideration for promotion to the post of Senior Administrative Assistant in the Gauhati High Court will be 5 years continuous service in the feeder post of Junior Administrative Assistant. By order, Sd/- R. Duarah REGISTRAR (ADMN.) Page 9 of 28

10 By annexing the aforesaid order, the petitioners contended that 5 years of continuous service in the feeder cadre was never a requirement till and so promotion of the petitioners to the cadre of SAA without there being 5 years of service in the feeder cadre was an erroneous decision. The subsequent executive instruction dated could not have been given retrospective effect for reverting the petitioners. 7. On , the same deponent filed another affidavit in WP(C) No. 4644/2013 bringing on record that during pendency of the writ petition, the Registrar General of the High Court promoted the present petitioners along with others again to the rank of SAA from where they had been reverted on The order dated has been brought on record by filing this affidavit. Three days thereafter on , a third affidavit has been filed in WP(C) No. 4644/2013 by petitioner stating that notices on respondents No. 1, 2, 3, 4, 5, 8, 14, 15 and 17 were supposed to be served by Dasti service. However, respondents No. 1 to 3 being official respondents had already entered appearance through the learned Standing Counsel and notices by Dasti service on respondents No. 4, 5, 8, 14, 15 and 17 had already been made. 8. On , the Registrar General of the High Court submitted an affidavit-in-opposition on behalf of respondents No. 1, 2 and 3. The facts as to appointment of the petitioners as extra typists, regularisation as typists and their promotion to the post of Lower Division Assistant was admitted in the affidavit. The deponent further stated that zone of consideration for promotion as prescribed by the Department of Personnel and Training, Government of India Page 10 of 28

11 vide O.M. dated and were adopted by High Court vide order of the Hon ble Chief Justice passed on The High Court issued an order on prescribing that promotion of officer and staff of the Gauhati High Court shall be made on the basis of merit cum seniority and the DPC shall scrutinise the ACRs of the concerned officers and staff for the last five years and those with the best/better ACRs shall be promoted. If the ACRs of some candidates are found equal, then the senior most shall be promoted. As an elbow room within the confines of the ACR is available, the concerned committee shall make use of it as and when required. It was also disclosed in the same affidavit that applying the aforesaid criteria for promotion as envisaged and also on scrutiny of the relevant ACRs of the eligible JAAs, their seniority and overall suitability, the DPC vide resolution dated recommended the names of the petitioners along with other 12 candidates for promotion to the post of SAA. In this process, there was supersession of some senior candidates who subsequently submitted representations for review and the same was placed before the DPC. The DPC rejected the representations on and and thereafter promotion orders dated and were issued in favour of the recommended candidates. After issuance of the promotion orders, the aggrieved senior incumbents in the cadre of JAA submitted further representation on , , , and for reviewing the promotion order dated The promotees were given opportunity to submit their response whereupon the petitioner along with three others submitted reply on The representations along with Page 11 of 28

12 the response were placed before the DPC consisting of two Hon ble Judges. The said committee adopted resolution on directing reversion of the promotes to the original cadre of JAA as they had not completed 5 years of service in the cadre of JAA on the date of consideration of their cases for promotion. The Hon ble Chief Justice by order dated directed that the employees be given opportunity of hearing before taking a final view. The matter was thereafter placed before the DPC which adopted resolution on and reviewed the earlier promotions. As stated in the affidavit, this committee assessed all the candidates as Good and Fit for promotion and resolved that the promotion to the rank of SAA would be determined on the basis of their inter-se-seniority position in the rank of JAA except those who did not have the qualifying service of 5 years in the rank of JAA. Accordingly, committee recommended 13 candidates for promotion. The minutes of all these resolutions including resolution dated and have been annexed to the affidavit-in-opposition. On the basis of the aforesaid resolution, petitioners Anil Kumar Singha, Surya Kanta Rajkumar, Arman ali and Smti. Nameeta Rabha were required to be reverted to the cadre of JAA in the interregnum. However, this would be done without any recovery of any pay in the rank of SAA. These persons were intimated by letter dated about their reversion and also that their names had been recommended for promotion again against anticipated vacancy. 9. Replying to paragraph 7 of the writ petition, the respondents No. 1 to 3 stated that representations submitted by the petitioners on and Page 12 of 28

13 were laid before the Committee on for consideration and thereupon the Committee by order dated directed the Registry to proceed as per the resolution dated and this is how the impugned reversion orders dated and promotion of the private respondents by order dated were issued. 10. In the aforesaid affidavit-in-opposition submitted on behalf of the respondents No. 1, 2 and 3 on , the minutes of the meeting held on of the Committee considering the representation submitted by the JAAs against earlier promotion of the petitioners herein, have been annexed as Annexure-19. The committee consisting of three Hon ble Judges of this High Court thoroughly considered the respective cases of both sides and also took note of the relevant records. The case of the representationists, the response of the promotees and deliberation and analysis of the whole gamut of the case have been discussed in separate heads. The Committee found that the senior most representationist JAA, Sri Nathuni Rai was going to retire from service on superannuation on and so he was hardly left with four months of service. The another representationist Ahmedul Ala had been earlier recommended for promotion to SAA on but the same did not materialise for want of vacancy. Five months thereafter when a vacancy arose he was not promoted but his case was clubbed with the case of other JAAs for consideration at the next DPC held on This time he was not recommended. The minutes of the meeting held on contain, inter alia, the following observations: Page 13 of 28

14 It is an admitted fact that the overall gradings in the ACRs of the incumbents which were considered by the DPC were never communicated to them, which aspect of the matter was duly taken note of by another DPC in its meeting held on In the ACR format, there is a column entitled Certify that unfavourable remarks recorded have been communicated to the employee concerned but in all the ACRs, the said column is blank without any remark and also not signed by the authority indicated under the said column. This position leads to the irresistible conclusion that the un-communicated remarks which were adverse in the context of guiding principles for promotion were never communicated to the incumbents, whose cases were under consideration but yet the same was the whole basis of making the recommendation for promotion. It is in this context, the representationists have referred to Dev Dutt (Supra), in which the Apex Court has observed thus:- 16. In our opinion if the Office Memorandum dated 10/ , is interpreted to mean that only adverse entries (i.e. poor entry) need to be communicated and not fair, average or good entries, it would become arbitrary (and hence illegal) since it may adversely affect the incumbent s chances of promotion, or to get some other benefit. For example, if the bench mark is that an incumbent must have very good entries in the last five years, then if he has very good (or even outstanding ) entries for four years, a good entry for only one year may yet make him ineligible for promotion. This good entry may be due to the personal pique of his superior, or because the superior asked him to do something wrong which the incumbent refused, or because the incumbent refused to do sycophancy of his superior, or because of caste or communal prejudice, or to for some other extraneous consideration. 17. In our opinion, every entry in the A.C.R. 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 noncommunication of such an entry may adversely affect the employee in two ways : (1) Had the entry been communicated to him he would know about Page 14 of 28

15 the assessment of his work and conduct by his superiors, which would enable him to improve his work in future; (2) He would have an opportunity of making a representation against the entry if he feels it is unjustified, and pray for its upgradation. Hence, non-communication of an entry is arbitrary, and it has been held by the constitution Bench decision of this Court in Maneka Gandhi Vs. Union of India that arbitrariness violates Article 14 of the Constitution. 26. In our opinion, our natural sense of what is right and wrong tells us that it was wrong on the part of the respondent in not communicating the good entry to the appellant since he was thereby deprived of the right to make a representation against it, which if allowed would have entitled him to be considered for promotion to the post of Superintending Engineer. One may not have the right to promotion, but one has the right to be considered for promotion, and this right of the appellant was violated in the present case. Above apart, on perusal of the ACRs of all the incumbents who were within the zone of consideration, what we find is that there was no basis of writing the ACRs. Most importantly, the gradings of the reporting Officer have been merrily downgraded by the final authority without assigning any reason. In many cases, although the gradings earned by the incumbents under different heads are the same, but finally there is wide variation in overall gradings, coupled with the fact that, as indicated above, such down gradation or adverse remark in the context of promotion had never been communicated to the incumbents. Non-application of mind in writing the ACRs is further demonstrated in making the remark, such as cleared all the pending files inasmuch as, the incumbent concerned being in the Protocol Section during the particular period was not involved with clearing of any pending files. Adding insult to the injury, the remark was recorded by the Criminal Revision Section, although, he was attached to Protocol Section. There are many such features which have made the ACR writing a useless formality but on the Page 15 of 28

16 basis of which promotions have been made. The Committee feels that there has been injustice and derogation of justice, fair play and transparency in the matter. We understand that some of the ACRs had been written in one go without any objectivity attached to it and had been written hurriedly at the eleventh hour to fill up the gap. Irrespective of the overall faulty procedure, all the represetationists vis-a-vis the promottees have been graded such, barring a very few, all are more or less at par in ACR gradings. It has rightly been contended by the represetationists that in the matter of promotion to the cadre of SSA (sic SAA), it is only the five years ACRs of the feeder grade i.e. JAA are required to be considered. However, as intimated above, at least in 6(six) cases Shri Gautam Bezbaruah; Shri Uttam Das; Shri Antil Kr. Singha; Shri Arman Ali; Smt. Namita Rabha and Shri Surya Kanta Rajkumar, the incumbents did not have five years of service in the feeder cadre of JAA but yet they have been recommended for promotion taking into account their services in the earlier feeder grade of Typist. The Committee has very carefully noted the principle relating to consideration for promotion which is merit-cum-seniority. The DPC is required to scrutinize the ACRs of the concerned JAAs for the last 5 (five) years and those with the best/better ACRs, shall be promoted. If the ACRs of the some candidates are found equal, then the senior most shall be promoted. As an elbow room within the confines of the ACR is available, the DPC shall make use of it as and when required. However, if the DPC is to follow only the overall gradings earned by the incumbents in their ACRs and that too recorded with the above methodology, in the considered view of the Committee, it would render the process of selection, a mechanical one, without there being any role of the DPC as is understood in the context of consideration of promotion by the DPC with objectivity attached to it. Page 16 of 28

17 As has been held by the Apex Court in Anil Katiya Vs. Union of India, reported in (1997) 1 SCC 280, it is for the DPC to grade the Officers in consideration of the various entries in the ACRs and just not follow the overall gradings in the ACRs. In the instant case, the DPC while recommending the promottees, did not grade them independently but only followed the overall gradings in their ACRs as the basis for recommendation. It is also on that basis, promotions have been recommended and in the process even some of the promotees have been superseded inter se. In view of the above, we have very carefully considered the individual ACRs of all the incumbents whose cases were considered by the DPC taking note of each one of the entries and remarks thereof. With such consideration, the Committee is of the considered opinion that all the representationists including the writ petitioner and the promotes except Shri Nathuni Rai and the six erstwhile Typists indicated above, are needed to be graded as Good and Fit for promotion. Consequently, they are entitled to get promotion to the cadre of SSA (sic SAA) maintaining their inter se seniority from the date when the junior promotes superseded them. This however, will be excluding those six Typists subsequently promoted to JAA and did not have 5(five) years of service in the feeder grade of JAA on the date of consideration by DPC. Their cases will have to be considered only on completion of 5(five) years of service in the cadre of JAA. Same is the case with two of the representationists, namely, Shri Harekrishna Choudhury and Shri Jehirul Islam, who also did not have the requisite length of service as JAA on the date of consideration. 11. The Committee considered the case of Nathuni Rai to be eligible for promotion prospectively in view of gradings given in his ACRs for last 2 years as Good and Fit for promotion. As he was supposed to retire on , the Page 17 of 28

18 post to be vacated by him as SAA was directed to be filled up by left out senior most/ recommended JAA on his retirement. The Committee ultimately made the following representations: (d) Recommendations: In view of the above, the Committee makes the following recommendations:- i) Since the incumbents i.e. the representationists including the writ petitioner vis-a-vis the promotes have all been graded as Good and Fit for Promotion, the promotions to the cadre of SAA be affected from the date when the promotes were promoted maintaining the inter se seniority in the cadre of JAA with notional fixation of pay without any back wages and actual pay from the date of assumption of charge of SSA (sic SAA). ii) If in the process, some of the promotees are required to be reverted to their former cadre of JAA, consequential order may also be passed. However, since they have also been recommended for promotion, they may also be promoted against the available vacancies and also against future vacancies, as and when will arise. However, there may not be any recovery of the pay and allowances, they have already received in the promotional post, but their pay shall be so re-fixed in the cadre of JAA as if they had continued in the said cadre without the promotion to SAA iii) So far as 6 (six) Typists, who were subsequently promoted to the cadre of JAA and representationists Shri Hare Krishna Choudhury and Shri Jehirul Islam are concerned, they having not completed 5 (five) years of service in the cadre of JAA on the date of consideration of their cases for promotion, their cases could not have been considered and recommended being ineligible and consequently upon reversion of the six promotes to the cadre of JAA, their cases including that of Shri Hare Krishna Choudhury and Shri Jehirul Page 18 of 28

19 Islam may be considered afresh against available vacancies on completion of five years of service in the cadre of JAA. iv) The senior most JAA, namely, Shri Nathuni Rai, be promoted to the cadre of SAA prospectively against any available vacancy. v) All the representations would stand disposed off in the above manner. 12. I have heard Mr. D Das, learned senior counsel assisted by Mr. S Khound for the petitioners, Mr. KN Choudhury, learned senior counsel assisted by Mr. RK Dubey, learned counsel for the private respondents and Mr. SK Medhi, learned Standing Counsel of the Gauhati High Court in both the writ petitions. I have perused the writ petitions, the affidavit-in-oppositions, the additional affidavits and the judgments relied on by the learned counsel for the parties. 13. Mr. D Das, learned senior counsel, argued that the Committee of judges committed error in allowing representation of the private respondents on which has been annexed as Annexure-19 to the affidavit-inopposition filed by the Gauhati High Court. This is because, same representation had been rejected by the four other committees on previous occasions after applying mind and so there was no question of reviewing the same. Such an action is illegal and unauthorised. He further argues that the DPC adopted resolution to cancel the promotion already granted to the petitioners only on the ground that they had not completed 5 years as JAA and so they were not eligible for promotion. According to Mr. Das, such a provision was laid down for the first time by a notification dated which shows that at the time when the resolution dated was adopted, there was no requirement for 5 years service in the feeder cadre. Such a decision of the DPC, therefore, giving Page 19 of 28

20 retrospective effect to the order dated is also equally illegal and unauthorised. The third ground argued by Mr. Das is that the cases of the petitioners were not considered before giving promotion to the private respondents and they were not given any opportunity of hearing before cancelling the promotion orders. With these submissions, he prayed that the writ petitions be allowed setting aside the impugned orders dated and which are annexed as Annexure-28 and Annexure-30 to the affidavitin-opposition filed by the Gauhati High Court and as Annexure-I and Annexure-J of the writ petition. 14. On the other hand, Mr. KN Choudhury, learned senior counsel representing the private respondents, submits that review by an administrative authority does not require any statutory provision. If the administrative authority finds that an earlier order was wrongly passed, it can very much review the same at its own accord. He cited the decision of Hon ble Supreme Court in this regard in the case of RR Verma vs. Union of India reported in (1980) 3 SCC 402. Coming to the argument of Mr. D Das, learned senior counsel, as to the correctness of the decision taken on by the Committee of Judges, Mr. Choudhury would argue that the resolution adopted on cuts at the very root of the case of the petitioners. The Committee held that the ACRs of all the candidates falling within the zone of consideration were not duly evaluated and specific instances were cited in the minutes of the meeting. The Committee was of the view that all the candidates are to be considered as Good and Fit for promotion and consequently under Rule 18 of the Service Rules, seniority Page 20 of 28

21 becomes the yardstick. He strenuously urges that the minutes dated were never challenged by the writ petitioners either by way of amendment or otherwise and thus the writ petition really has become untenable. Once the minutes dated are allowed to remain in force, the DPC cannot be faulted for cancelling promotion of the petitioners to give way to the private respondents. According to him, the ACRs for 5 years of all the candidates including the petitioners were considered by the DPC and thereupon decision was arrived at. The Committee of Judges before arriving at the decision on in regard to representation of the private respondents had admittedly given opportunity to the writ petitioners for placing their case who did not contest the representation in right earnest and merely stated that their promotions had been given by the competent authority after due perusal of the materials on record. The sum total of his argument is that DPC is not bound to accept the ACRs at their face value and can very well take its own decision on the eligibility and suitability of the candidates by independently applying mind on the basis of the materials placed before it. In support of his argument he has placed reliance on the case of UPSC v. Rajaiah and ors. reported in (2005) 10 SCC 15. So, the writ petitions do not have any merit and they are liable to be dismissed. 15. Mr. SK Medhi, learned Standing Counsel of Gauhati High Court, submits that the writ petitioners are not permitted to challenge a decision without challenging the decision making process. Drawing attention of the court to the annexures of the affidavit-in-opposition filed on behalf of the Gauhati High Court, Page 21 of 28

22 he urges that the Committee of Judges while considering the representation of the private respondents took into account all the objections raised by them and also considered the individual ACRs. The Committee was satisfied that ACRs were not properly evaluated and graded and by applying independent mind they considered all the candidates to be Good and Fit for promotion. This decision arrived at on has attained finality as the writ petitioners did not challenge the same. They have merely challenged their reversion and consequent promotion of the private respondents. Be that as it may, even the writ petitioners were subsequently promoted to the cadre of SAA and so all the writ petitioners and private respondents are now in the same cadre. Taking a queue from the argument of Mr. KN Choudhury, learned senior Advocate, Mr. Medhi also submits that the writ petitioners not having challenged the minutes dated , they cannot challenge the consequential orders passed on and The net result is that the writ petitions are to be dismissed. 16. Having heard the learned counsel for the parties, I have given my anxious considerations to the points raised in the light of the materials placed before me vis-a-vis the reported judgments relied on by the parties. 17. In this case, at the time of consideration of the representation submitted by private respondents, the Committee of Judges considered the ACRs of all the candidates falling within the zone of consideration. The minutes of the meeting held on show that the committee came across materials before it from the ACRs to hold a view that evaluation was not uniformly made in the ACRs resulting in anomaly. The specific finding is that there was no basis of Page 22 of 28

23 writing the ACRs and gradings of Reporting Officers have been merrily downgraded by the final authority without assigning any reason. The committee also held the view that gradings earned by incumbents under different heads being same, final gradings were varied coupled with the fact that such down grading or adverse entries have never been communicated to the concerned employees. According to the committee, there was non-application of mind in writing the ACRs and even those employees including employees of Protocol section who have no business to deal with files, remark Cleared all the pending files have been lavishly put in their favour. Having noticed the individual cases the committee was of the view that ACR writing became a useless formality and there has been injustice and derogation of justice, fair play and transparency in the matter. These findings of the Committee of Judges coupled with the observation that some ACRs had been written in one go without any objectivity attached to it and filled up at the eleventh hour, have gone unchallenged till date. On the backdrop of these findings, the Committee of Judges held the view that all the incumbents are needed to be graded as Good and Fit for promotion and so they are entitled to get promotion to the cadre of SAA on the basis of their inter-se-seniority. 18. It is true that the aforesaid findings of the Committee of Judges on the representation of superseded employees was an exercise of review as similar prayer was earlier rejected by previous committees. Although, Mr. D Das, learned senior counsel, has argued that such an exercise of review is not permissible without there being any statutory provision, such an argument does not appear Page 23 of 28

24 to be forceful and persuasive. The principle that power of review is only a creature of statute either specifically or by necessary implication, is applicable only where the authority exercises judicial or quasi-judicial power vested in it by statute. It does not apply to purely administrative decision. In administrative exercises, the authority must be free to alter its policy or its decision once it is of the view that the earlier decision was erroneous and such an authority cannot be hidebound by rules and restrictions of judicial procedure. A view taken by the administrative authority on review, however, is subject to judicial review. The Hon ble Supreme Court has held the above view in the case of R.R. Verma (supra). The Committee of Judges discharged executive function while considering the representation filed by 13 employees and the same not being a judicial or quasi-judicial exercise, the Committee was entitled to review its earlier view. The first argument put forward by Mr. D Das, learned senior Advocate, questioning the power of review of the Committee of Judges, therefore, is not acceptable. 19. Once, it is held that there was no jurisdictional error on the part of the Committee of Judges in adopting resolution dated , the findings recorded therein are to be taken at face value since no challenge has been made for judicial review of those findings. The whole minutes dated were annexed at Annexure-19 of the affidavit-in-opposition submitted on behalf of the High Court Registry but even thereafter the writ petitioners have not chosen to amend the writ petition and/or to otherwise challenge the findings in the resolution dated In the absence of challenge, the findings of Page 24 of 28

25 resolution dated are to be taken as final and at face value. If this is done in that event, the petitioners and the respondents have same merit. All of them have been finally graded as Good and Fit for promotion and so naturally under Rule 18 of the Rules they will be entitled to benefit of promotion on the basis of seniority. The argument of Mr. D Das that Rule 18 of the Rules prescribing promotion on the basis of merit of seniority has been violated in the present case, is not tenable under the aforesaid circumstances. 20. The only question remains to be answered is whether the eligibility criteria of 5 years service in the feeder cadre was necessary in the present case. It appears that the requirement of 5 years eligibility was prescribed only by notification dated This has been annexed as Annexure I to the additional affidavit submitted on behalf of the petitioner on in WP(C) 4085/2013. The order dated is quoted below:- ORDER Dated Guwahati the 7 th August, 2013 No.HC.V-8/2012/1753/Estt. # # # The Hon ble the Chief Justice has been pleased to order that the zone of consideration for promotion to the post of Senior Administrative Assistant in the Gauhati High Court will be 5 years continuous service in the feeder post of Junior Administrative Assistant. By Order Sd/- R. Duarah REGISTRAR (ADMN.) On the other hand, the writ petitioners have furnished a list of cases including the case of Bhabendra Nath Das, Abdul Jabbar, Jiban Das, Chabin Page 25 of 28

26 Kalita, Hemen Deka and Dipak Prasad to show that these JAAs were promoted on much before completion of 5 years in the cadre of JAA. The petitioners have furnished some instances wherein similar promotions were given before completion of 5 years even after issuance of notification dated Of course, by furnishing records, the Registry has shown that in the latter cases, the Hon ble Chief Justice relaxed rule by passing individual orders. 21. Rule 18 of the Rules governing the service condition of employees of the Gauhati High Court does not contain any eligibility criteria of 5 years service in the feeder post. This is why by issuing an order on such a provision has been brought in. The inevitable conclusion is that this criterion cannot have retrospective operation and is prospective from the date of its issue. In the case in hand, there is mention both in resolution dated as well as the DPC resolution on that promotion to the rank of SAA will be determined on the basis of their inter-se-seniority position in the rank of JAA, save and except those who did not have the qualifying service of 5 years in the rank of JAA. Excluding the candidates from zone of consideration by the DPC on (Annexure-24 to the affidavit-in-opposition submitted by respondents No. 1, 2 and 3 on ) was impermissible as the requirement came into force only on But the question arises as to whether nonexistence of 5 years service in feeder post will ultimately tilt the result and were the cases of the petitioners really considered along with private respondents at the time of giving promotion. This is because, all the candidates having been graded by the DPC as Good and Page 26 of 28

27 Fit for promotion by the Committee of Judges in the resolution dated as well as the DPC on , the promotion ultimately had to be on the basis of seniority only in terms of Rule 18. It is not the case of the present writ petitioners that some of their juniors have been promoted to the cadre of SAA. Had it been the case, in that event purported exclusion of the candidature of the petitioners for lack of 5 years service in cadre of SAA would have been fatal as it would have tilted the decision. Here in this case, it appears that ultimately promotion has been given on the basis of seniority. If that is so, there is no real exclusion of the petitioners from consideration at all. 23. It is also to be noted that after the representation came up for consideration, the present petitioners were asked to give their response. Copy of the representation was available to the petitioners and the same has been annexed to the writ petition as well. Representation is exhaustive and it contains grounds on which the promotion of the present petitioners was challenged. The writ petitioners did not refute any of these grounds by filing a specific reply. The reply submitted by them was vague merely stating that they had been given promotion by competent authority on apprisal of their merit. The Committee thereafter perused the records and considered the individual ACRs. The findings of the Committee, therefore, cannot be said to be violative of the principles of natural justice. The finding of the Committee that promotion given to the juniors superseding the seniors on the basis of un-communicated ACRs also cannot be held to be wrong in view of the judgment of the Hon ble Supreme Court in the case of Dev Dutt v. Union of India & ors. reported in (2008) 8 SCC 725. The Page 27 of 28

28 exercise made by the Committee to take a different view from the one reflected in the ACR is also valid in view of the law laid down by the in the case of UPSC v. Rajaiah & ors reported in (2005) 10 SCC 15. The Committee took into view the law laid down by Hon ble Supreme Court in the case of Anil Katiyar v. Union of India reported in (1997) 1 SCC 280 to hold that it is for the DPC to grade the officers in consideration of the various entries made in the ACRs and DPC is not bound to follow the overall gradings in the ACRs. All these views are held in the light of the law laid down by the Apex Court and so, this court does not find any ground to interfere with the impugned orders. 24. The writ petitions are devoid of any merit and accordingly the same are dismissed. No order as to costs. BiswaS JUDGE Page 28 of 28

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