Tyrna Ryngat vs State of Meghalaya & Ors

The petitioner was appointed as Lower Divisional Assistant in the office of the Chief Engineer, PWD (Roads) on being recommended by the Meghalaya Public Service Commission on 9th November, 1987 and is presently serving as Supervisory Assistant w.e.f. 15th May 2018 on being promoted during the pendency of the instant writ petition. The prayer as made out in the writ petition is for setting aside the grading of 'poor' as recorded in the Annual Confidential Report dated 27th June, 2013, the minutes of the Departmental Promotion Committee dated 4th September, 2014, office order dated 16th September, 2014 promoting the respondents No. 4 & 5 and letter dated 14th October, 2014. The petitioner has also prayed that the gradation list dated 31st December, 2013 be declared valid and the respondents be directed to promote the petitioner to the post of Supervisory Assistant from the date the said post became vacant.

I have heard Mr. G.S. Massar, learned senior counsel assisted by Mr. R. Kharsyad, learned counsel for the petitioner and Mr. K. Khan, learned senior Government Advocate assisted by Mr. H. Abraham, learned Government Advocate for the respondents 1, 2, 3 & 6. None appears for the respondents No. 4 & 5.

Mr. G.S. Massar, learned senior counsel submits that the petitioner after her initial appointment as LDA in the year 1987 was promoted as Upper Divisional Assistant on 24th November, 1998 after completion of 11 years in service. Learned counsel submits that the respondent No. 3 released the provisional gradation list dated 31st December, 2013 wherein the petitioner was shown at Sl. No. 3 in seniority and as there were no objections, the list attained finality and taken to be correct. Learned counsel submits that the respondent No. 3 vide letter dated 16th December, 2013, then communicated an adverse entry made in the petitioner's ACR for the period dated 1st September, 2012 to 31st December, 2012 and at the same time called for representation against the adverse remarks to be made within 6 weeks from the date of issue of the said letter. At this juncture the learned senior counsel refers to the Memorandum dated 21st February, 1983 issued by the Personnel & A.R. (B) Department which contains the procedures and guidelines for writing of confidential reports of State Government employees. Learned counsel contends that the communication of the said adverse entry had been done in violation of Paragraph 11 (i) of the said Memorandum which mandates that an adverse or critical remark shall be communicated within 2 months from the date of acceptance, whereas the communication was made to the petitioner after the period of 1 year, after the adverse entry had been recorded.

Learned counsel asserts that even the manner in which the adverse entry grading the petitioner as 'poor' for the said period appears to have been manipulated and tampered in the records. To substantiate this submission, learned senior counsel submits that this was revealed from the certified copy which was issued to her through the Right to Information Act, which was different from the copy served on her through the respondent's No. 3 office vide letter dated 16th December, 2013. He then draws the attention of the Court to Annexure-2, 2A and 2B respectively to illustrate the discrepancy, and submits that the failure to comply with the mandatory provisions makes the office order dated 16th December, 2013 and the adverse entries in the Annual Confidential Report of 2012 invalid. He further submits that the Annual Confidential Report of the petitioner had also failed to observe the stipulation that there should be a three tiered assessment i.e. Recording Authority, Reviewing Authority and Accepting Authority, inasmuch as, the ACR of the petitioner was prepared at only two stages i.e. Recording Authority and Reviewing Authority. Learned counsel submits that as the procedure as laid down has been violated and the report manipulated, the same cannot be said to be valid and as such cannot be accepted for the purpose of consideration for promotion.

Learned senior counsel submits that apart from this, the respondent No. 3 vide letter dated 9th September, 2014 sought for explanation from the petitioner with regard to her habitual absence from duty, unpunctuality and irregularity in attendance, to which the writ petitioner replied vide explanation dated 15th September, 2014. Learned counsel submits that while the explanation was still pending for consideration, the respondent No. 3 vide office order dated 16th September, 2014, granted promotion temporarily to the respondent No. 4 as Supervisory Assistant, thus superseding the writ petitioner who was senior as per the gradation list.

Learned counsel then submits that the writ petitioner thereafter, preferred a representation dated 19th September, 2014 against the promotion of respondent No. 4 but however was served with another letter dated 29th September, 2014 issued by respondent No. 3 calling for explanation for absence from duty and also as to why departmental proceedings should not be initiated against her. In reply thereto he submits, the writ petitioner had submitted her explanation on 1st October, 2014 stating the reasons for her absence, to which respondent No. 3 closed the matter vide order dated 17th October, 2014 by accepting her plea not to be penalized but however, with the warning that she was to improve her conduct, attendance and punctuality and to follow procedure.

Learned counsel then reverts back to the discrepancies in the ACR and submits that even assuming but not conceding that the remark 'poor' in the Annual Confidential Report for the period 1st October, 2012 to 31st December, 2012 was not tampered with, it defies reasoning as to how the final assessment is shown as 'poor' in the Grade column after being remarked as 'good' in the other columns. Learned counsel further submits that the respondents had never considered the complete Confidential Report of 2013, which has entries where the petitioner had been graded as 'good' but the consideration was limited to only the three months' period. He also submits that the petitioner thereafter, had preferred a representation to the respondent No. 3 dated 24th October, 2014 against the withholding of her promotion but the same was not responded and as such she was compelled to prefer her representation before the next higher authority i.e. the respondent No. 2 (Secretary to the Government of Meghalaya, PWD) on 2nd December, 2014. A reply, he submits was received under the hand of the respondent No. 3 and also on behalf of the respondent No. 2 vide letter dated 29th January, 2015 after a lapse of 1 year with vague reasons as to the delay of disposal of the representation. Learned counsel vehemently submits that the respondent No. 3 in addressing the representation had acted beyond his jurisdiction, inasmuch as, he had even usurped the authority of the respondent No. 2 with the sole intent to protect the incorrect grading allegedly made by his predecessors. He also further submits that in the reply the statement that the respondent No. 3 as the Head of the office in the PWD is the Appointing authority and Reviewing authority is against the principles of service jurisprudence, and the procedures and guidelines as laid down in the Office Memorandum dated 21st February, 1983.

The learned senior counsel in concluding his argument submits that the entire sequence of events reflects the inimical attitude that the respondent 1, 2 & 3 had adopted against the petitioner firstly by manipulating the Annual Confidential Report grading, non-communication within the stipulated time of the adverse entry in violation of the said procedure as prescribed by the Office Memorandum dated 21st February, 1983, calling for explanation and lastly the supersession in violation of the gradation list, had resulted in gross injustice being caused to the petitioner and has occasioned serious infringement of her fundamental rights for which this Court cannot turn a blind eye. As such he prays for setting aside the grading of 'poor' of the ACR dated 27th June, 2013, Departmental Promotion Proceedings dated 4th September, 2014, Office Order dated 16th September, 2014 and letter dated 14th October, 2014.

In support of his contentions and submissions Mr. G.S. Massar, learned senior counsel has placed reliance on the following judgments: -

(i) State of Haryana vs. Shri P.C. Wadhwa, IPS Inspector General of Police & Anr. AIR 1987 SC 1201

(ii) State of Gujarat & Anr. vs. Suryakant Chunilal Shah (1999) 1 SCC 529

(iii) Sukhdev Singh vs. Union of India & Ors. (2013) 9 SCC 566

(iv) Basheshar Nath vs. Commissioner of Income-tax, Delhi and Rajasthan & Anr. AIR 1959 SC 149

(v) Olga Tellis & Ors. vs. Bombay Municipal Corporation & Ors. (1985) 3 SCC 545

Mr. K. Khan, learned senior Government Advocate in reply to the submissions firstly submits that the writ petitioner is estopped from assailing or raising the issue of illegality or irregularity in the entire proceedings as the writ petitioner has waived her right by not representing against the alleged adverse critical remarks which were communicated to her. He submits that as no representation had been made, the proceedings and entries in the ACR are final. In this regard he refers to the office memorandum 21st February, 1983 at Chapter-II and submits that as per the memorandum, the adverse remarks were communicated to the writ petitioner and further that it is within the authority of the department to decide as to whether a particular remark is adverse or critical.

Learned counsel next contends that the Departmental Promotion committee which had sat on 4th September, 2014 to consider the case of promotion of Supervisory Assistant in the office of the respondent No. 3 is not the competent authority to determine as to whether correct procedure had been adopted while recording the ACR but is only to examine the remarks contained therein for the purposes for consideration of promotion. He submits that the DPC had looked into the ACR and personal file of the writ petitioner and as such had discharged its duties as mandated by rules. Learned counsel further submits that Rule 7 (ii) of the Meghalaya Services (Discipline & Appeal) Rules, 2011, read with Rule 7 (c) allow for withholding of increment or promotion and for non-promotion whether substantive or officiating capacity of a Government servant after due consideration. He therefore submits that the adverse entry not being represented against and the assessment having attained finality, the grading of 'poor' remained which rendered the case of the petitioner for promotion to be considered in the light of the ACR as recorded.

Mr. K. Khan, has vehemently reiterated that the fact that no representation was ever presented against the remarks cannot be overlooked in any manner and that the writ petitioner having waived all her rights, is therefore estopped from turning around and challenging the adverse entry and also the proceedings of recording and communication of the same at this juncture. Learned counsel also draws the attention of this Court to the letter dated 15th September, 2014 to underline this fact that the writ petitioner had in categorical terms stated that she had not filed any representation to the ACR of 2012. As such he contends that the writ petitioner is estopped from raising any further grievance with regard to the said adverse entry. He further submits that the DPC took into consideration the ACRs of five previous years i.e. from 2009 to 2013 not only of the petitioner but also of the other Upper Divisional Assistants who were placed in the select list for consideration for promotion. Learned counsel then refers to the proceedings dated 4th September, 2014 (Annexure-IV to the affidavit-in-opposition) to fortify his submissions and further submits that even on the date of the DPC, the writ petitioner was absent unauthorizedly.

With regard to the other points raised by the counsel for the petitioner, on the point that the ACR was tampered and that the entry 'poor' had been superimposed in different handwriting, learned counsel submits that the same is incorrect and that this can be clearly verified from the original Annual Confidential Report, available in the records, that there has been no such tampering. On the other point as to the grading having been done only for 3 months i.e. from 1st October, 2012 to 31st December, 2012 he submits that the same was occasioned due to the retirement of the then Chief Engineer on 30th September, 2012 and as such the following period was recorded separately and accepted by the then Secretary, Public Works Department who held charge of the post of Chief Engineer, PWD (Roads).

Learned counsel has placed reliance in the following judgments:-

(i) S. Raghbir Singh Gill vs. S. Gurcharan Singh Tohra & Ors. (1980) Supp SCC 53

(ii) Jaswantsingh Mathurasingh & Anr. vs. Ahmedabad Municipal Corporation & Ors. (1992) Supp 1 SCC 5

(iii) Joint Action Committee of Air Line Pilots' Association of India (ALPAI) & Ors. vs. Director General of Civil Aviation & Ors. (2011) 5 SCC 435

(iv) K.K. Parmar & Ors. vs. H.C. of Gujarat Through Registrar & Ors. (2006) 5 SCC 789

(v) Common Cause, A Registered Society vs. Union of India & Ors. (1999) 6 SCC 667

(vi) Rajendra Pratap Singh Yadav & Ors. vs. State of Utter Pradesh & Ors. (2011) 7 SCC 743

(vii) C.O. Arumugam & Ors. vs. State of Tamil Nadu & Ors. 1991 Supp (2) SCC 199

(viii) Dharam Vir Singh Tomar vs. Administrator, Delhi Administration & Ors. 1991 Supp (2) SCC 635

(ix) Dev Dutt vs. Union of India & Ors. (2008) 8 SCC 725

(x) Tata Engineering & Locomotive Co. Ltd. vs. The Assistant Commissioner of Commercial Taxes & Anr. AIR 1967 SC 1401

(xi) Nagendra Nath Bora & Anr. vs. Commissioner of Hills Division and Appeals, Assam & Ors. AIR 1958 SC 398

Having heard learned counsel for the parties, the issues that arise for consideration stems from the manner in which the entire episode concerning the recording, assessment and communication of the adverse entry was done by the respondents on one hand and the conduct and manner in which the writ petitioner had sought redressal and responded to the remarks and denial of promotion on the other hand.

The Government of Meghalaya with the object of laying down the procedure and guidelines for writing of Confidential Reports on State Government employees had issued the Office Memorandum dated 21st February, 1983 prescribing the procedure as such. Chapter-I (1) to (6) of the said Memorandum stipulates the system and stages of the authorities entrusted with the responsibility for recording, reviewing and acceptance of the Annual Confidential Report. Chapter-II deals with the manner of communication of adverse/critical remarks and Chapter-III deals with the representation against the said adverse remarks. The relevant extracts of the Chapters are quoted herein below: -

"I. General Guide Lines

The three stages of Authorities entrusted with the responsibility for recording, reviewing and accepting the Annual Confidential Report should be so routed that the Recording Authority should be the Officer who is immediately superior to the Officer reported upon, the Reviewing Authority should be the Officer who is immediately superior to the Recording Authority and the Accepting Authority should be the Officer who is immediately superior to the Reviewing Authority.

(2) An Annual Confidential Report should be written for every State Government employee for each calendar year within two months from the date of the closure of the calendar year.

(3) A Confidential Report should also be written when either the Reporting Authority or the employee reported upon relinquishes the charge of the post.

(4) The Reporting Authority, the Reviewing Authority or the Accepting Authority is not competent to write the Annual Confidential Report or to make any remarks on the work and performance of the Officer working under him unless he has seen the work and performance of such Officer for at least three months during the period under report.

(5) The Recording Authority, the Reviewing Authority and the Accepting Authority is not competent to write or to contribute any remarks on the Annual Confidential Report of the Officer reported upon during the period under report after retirement from service or demitting office as the case may be. This will apply to both Government servants and non-officials.

(6) The Authorities who may be entrusted with the responsibility of recording, reviewing and accepting the Annual Confidential Reports in respect of the Officers and staff in the Offices of the Heads of Departments as well as the District and Subordinate Offices should be determined by the Administrative Departments concerned.

II. Communications of Adverse/Critical Remarks

(1) Where an Annual Confidential Report contains adverse remarks or critical remarks, those remarks shall be communicated to the Officer concerned in writing by the Administrative Department/Directorate/Office as may be prescribed by the Administrative Department in respect of the different categories of employees reported upon. In doing so, only the substance of the entire remarks recorded in the Confidential Report containing the good points as well as those adverse/critical remarks shall be communicated within two months from the date of acceptance, and a copy thereof kept in the C.R. Dossier.

(2) The question as to whether a particular remarks is adverse or critical or not shall be decided by the Administrative Department/Directorate/Office as may be decided by the Administrative Department in respect of the different categories of Officers reported upon.

(3) While communicating the adverse/critical remarks to the officer reported upon, the identity of the Authority/Authorities which have recorded the adverse/critical remarks shall not be disclosed as that will unnecessarily lead to unpleasantness and personal animosity. It shall be communicated in a confidential cover.

III. Representation against the Adverse/Critical Remarks

(1) The Officer reported upon may represent within six weeks to the Administrative Department/Directorate/Office as the case may be, which should take such action as may be necessary.

(2) Representation against adverse/critical remarks submitted after the specified time shall not be considered unless there is satisfactory explanation for the delay in submitting the same. The representation should be specific and should contain clear reasons as against those adverse/critical remark."

In the instant case, as per the case put up by the petitioner, the memorandum has not only not been adhered to but has been violated, inasmuch as, the Recording and Reviewing authority is the same, and the adverse entry was communicated after a period of 12 months when the stipulation is 2 months. This as per the petitioner, has rendered the ACR non est, and as such cannot be taken into account for consideration for the purposes of assessment for suitability of promotion. However, this contention has to be considered by also taking into account the fact as to whether the procedure adopted was ever questioned at any point of time or whether the writ petitioner had adequately agitated for expunging the adverse entries on the same being communicated to her.

No doubt, on examination of the records and the facts as placed, it shows that there have been irregularities in the manner in which the ACR had been recorded and also the delay in communication of the same. However, this was never at any point of time represented against by the petitioner, and it was only in connection with her reply dated 15th September, 2014 calling for explanation that she had touched upon the remarks that was made in the ACR while at the same time stating that she had not submitted any representation to the ACR of 2012. Further her representation dated 19th September, 2014 is only with regard to her grievance of being superseded. The parallel events concerning the explanation called from the petitioner for absence from duty which was communicated to the petitioner vide letter dated 29th September, 2014 culminated in the order dated 17th October, 2014 issued by respondent No. 3, whereby the explanation and request were accepted with a warning that she was to improve her conduct, attendance and punctuality and to follow due procedure.

The matter as it stood at the relevant point of time can be taken to mean that the entry in the ACR remained as recorded, as also the warning that she received with regard to her absence from duty. It had been strenuously asserted by Mr. G.S. Massar, learned senior counsel that on the point of waiver, the same does not apply, inasmuch as, there can be no waiver of rights as guaranteed. It is correct that a citizen cannot give up or waive a breach of fundamental rights that is indirectly conferred on him by the Constitution as observed in the case of Basheshar Nath vs. Commissioner of Income-tax, Delhi and Rajasthan & Anr. (supra) but as held in the case of S. Raghbir Singh Gill vs. S. Gurcharan Singh Tohra & Ors. (supra) the doctrine of waiver will apply if the privilege was granted for the benefit of an individual. In the instant case, the categorical waiver by the petitioner as regards making a representation against the adverse entry weighs heavily against her, as she had exercised her right to not represent against the adverse entry and the only inference that can be drawn is that she had accepted the remarks as recorded.

Paragraph 24 of the case of S. Raghbir Singh Gill vs. S. Gurcharan Singh Tohra & Ors. is reproduced herein below

"24. An apprehension was, however, voiced that the principle of secrecy enshrined in Section 94 of the Act having been enacted in public interest and it being a prohibition based on public policy, it cannot be waived. Reliance was placed on Basheshar Nath v. The Commissioner of Income-Tax, Delhi & Rajasthan, AIR 1959 SC 149 where the question whether the doctrine of waiver can be invoked when the constitutional or statutory guarantee of a right is not conceived in public interest or when it does not affect the jurisdiction of the authority infringing the said right, was examined. It was held that if the privilege conferred or the right created by the statute is solely for the benefit of the individual, he can waive it. It was, however, said that even in those cases the Courts invariably administered a caution that having regard to the nature of the right some precautionary and stringent conditions should be applied before the doctrine is invoked or applied. In Behram Khurshed Pesikaka v. The State of Bombay, AIR 1955 SC 123, it was observed that fundamental rights have not been put in the Constitution merely for individual benefit, though ultimately they come into operation in considering individual rights. They have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a matter of constitutional policy. Undoubtedly, where a prohibition enacted is founded on public policy courts should be slow to apply the doctrine of waiver but this approach overlooks the fact that if a privilege was granted for the benefit of an individual, in the instant case for the benefit of voter, even if it was conferred to advance a principle enacted in public interest nonetheless the person for whose benefit the privilege was enacted has a right to waive it because the very concept of privilege inheres a right to waive it. And where a voter waives his privilege not to be compelled to disclose for whom he voted, if he wants to run the gamut of risk disclosure it does not violate any other principle because it was enacted to help him to vote free from any inhibition or fear or apprehension of being subjected to some calamity. To hold otherwise is to perpetuate the very mischief which is sought to be suppressed. The inescapable conclusion is that Section 94 enacts a qualified privilege in favour of a voter not to be compelled to disclose for whom he voted but if he chooses to volunteer the information Section 94 is not violated." (emphasis supplied)

The other aspect which is noted and has been agitated by the writ petitioner in the instant case that the Memorandum had been grossly violated inasmuch as, the adverse entries were communicated to her after the lapse of 1 year and also that the manner of recording and reviewing also had been done incorrectly and not as per procedure as laid down. These issues which no doubt are of great concern, the same have become inconsequential in the totality of the circumstances as even the same was never questioned by the writ petitioner at the relevant point of time. Though in the case of State of Haryana vs. Shri P.C. Wadhwa, (supra) the petitioner therein had not made a representation against the adverse entries which were belatedly communicated to him and had approached the Court directly assailing the same, the ratio of the said case will not apply as the writ petitioner herein had specifically waived her right by the explanation letter dated 15th September, 2014.

On the issue of the writ petitioner being superseded by her junior to the promotional post of Supervisory Assistant, on perusal of records as produced it is noticed that the Departmental Promotional Committee had not confined itself only to the adverse entry of 2012 to make an assessment as to her suitability for promotion, but 5 year records of ACRs and other related materials in her file were considered before arriving at the decision.

However, the rejection of her representations dated 24th October, 2014 addressed to the respondent No. 3 and 2nd December, 2014 addressed to the respondent No. 2 by letter dated 29th January, 2015 which was under the hand of respondent No. 3, is highly irregular, inasmuch as, the petitioner's representations were answered by the respondent No. 3 in his own capacity and also on behalf of the respondent No. 2 who is supposed to be the higher authority. Further, the reply also asserts that the respondent No. 3 is the appointing, reviewing and accepting authority which is against the set procedure and this discrepancy is writ large on the face of the record.

The instant case and the chain of events are replete with the acts of commissions and omissions both on the part of the writ petitioner and the respondents, however with the result and outcome being to the disadvantage of the writ petitioner, in terms of her service expectations and entitlements. In this situation therefore it would be apt that this Court look into the aspect of 'equity'. 'The principle that equity and law are twin brothers and law should be applied and interpreted equitably but equity cannot override written or settled law'(2003) 3 SCC 541 is well settled. In my opinion within these stated confines as enunciated and reiterated in various rulings of the Hon'ble Supreme Court, the instant case, is a fit case whereby equitable relief, limited or otherwise can be considered to be extended in view of the facts and circumstances of the case as it pertains.

For the foregoing reasons, and in consideration thereof, without dwelling any further on other issues raised, this writ petition is partially allowed and the Departmental Promotion Proceedings of 4th September, 2014 is interfered with, to the extent that the recommendation for promotion to the second vacancy of Supervisory Assistant as reflected in Agenda No. 1 to the said proceedings is set aside. It is directed that the seniority position be maintained as per the gradation list dated 31st December, 2013, and consequently the respondents are directed to promote the petitioner to the second post of Supervisory Assistant accordingly from 4th September, 2014, the date that the order was to take effect for the promotion of respondent No.4. However, the writ petitioner will not be entitled to any retrospective financial benefits and the promotion so accorded will be notional in character only for maintenance of the seniority position.

The records as produced be returned to the learned counsel for the respondents. No order as to costs.