Sankar Chandra Natta vs State Of Tripura And Ors.

The petitioner is working as a Rifleman (Band). While in service, he was involved in a criminal case. By a judgment dated 14.02.2006 he was convicted by the Sessions Court and sentenced to rigorous imprisonment of 10 years for offence under Section 304 of IPC. He challenged the judgment of conviction before the High Court. The appeal was allowed on 03.07.2013. He was acquitted. In view of these developments, the department passed an order dated 11.09.2013 dropping the departmental inquiry which was instituted against him on the ground that he was convicted for offence under Section 304 of IPC. By this order his suspension period was also regularized and would be treated as having spent on duty.

Petitioner thereafter urged the department to grant him the promotion which he had in the meantime lost. The department handed over the impugned communication dated 22.08.2016 conveying to him that his case for promotion was considered but he was not found fit for promotion since he had average ACRs in his service record. At that stage, he has filed this petition.

The respondents have appeared and opposed the petition. It is pointed out that the DPC which was convened on 27.08.2012 had considered large number of eligible officials for promotion. The DPC also considered the case of the petitioner. The DPC had adopted "good" as a minimum benchmark for last five years of ACRs which the official must possess before he can be promoted. The respondents have pointed out that for the five years under consideration, i.e. period between the year 2007-08 to 2011- 12 the petitioner had overall "good" remarks only in three years whereas for the years 2009-10 and 2010-11 his overall performance was graded as "average".

Learned counsel for the petitioner Mr. Raju Datta submitted that at no point of time the petitioner was communicated any of the remarks which are now being used to deny his promotion. Learned Additional Government Advocate Mr. Dipankar Sharma relied on the affidavit-in-reply and the DPC files to oppose the petition.

The fact that the petitioner was never communicated any of the remarks for the period under consideration is not disputed by the respondents. In case of Dev Dutt vrs. Union of India and others reported in (2008) 8 SCC 725 the Supreme Court had observed that what remarks would constitute adverse requiring communication to the concerned Government servant must depend on its impact. If the minimum benchmark is "good", any remarks below the same benchmark would automatically act as adverse to the official. Unless this is brought to his notice, he would have no opportunity to improve his performance.

In the present case, precisely this is what has happened. The DPC had adopted "good" as the minimum benchmark to grant promotion to the post of Rifleman which the aspirant must possess in all of the five years immediately preceding the date of DPC. Any remark below "good" would thus automatically disqualify the concerned employee from promotion. Under such circumstances, it was the duty of the department to communicate to the petitioner the remarks for the years 2009-10 and 2010-11 in which his overall grading was "average". This not having been done, the petitioner was deprived of an opportunity to point out that these gradings were not accurate and that his performance was in fact better.

In the result, the petition is disposed of with following directions:

The competent authority shall communicate the grading of "average" to the petitioner for the said years 2009-10 and 2010-11 and the remarks on which these overall gradings are based. This shall be done within a period of four weeks from today upon which the petitioner would have four weeks to make a representation to the competent authority against such remarks if he wishes to. If there is any change in his overall gradings for both those years and the petitioner does achieve the remarks of "good" or above, he would be granted promotion from the date when on the basis of recommendations of the DPC dated 27.08.2012 the colleagues and juniors of the petitioner were promoted. This would be retrospective for all purposes except for pay and allowances.

Pending application(s), if any, also stands disposed of.