Judgment:
Ajit Kumar Sinha, J.
1. The present writ petition has been preferred for issuance of an appropriate writ, order or direction commanding upon the respondents for the following reliefs:
i) To dispose of petitioner's representation dated 26.6.97 and 21.10.99 against the adverse remarks in the A.C.R. for the period 1.4.96 and 6.8.96 and adversary memorandum dated 9.6.99 respectively.
ii) To hold and declare that the adverse remarks and adversary memorandum are highly vague and non-specific and non-sustainable in law.
iii) To quash the promotion list dated 30.10.99 whereby and whereunder the respondent No. 6 P.N. Thakur and respondent No. 5 Bhagwan Sahai, both Junior to the petitioner, have been granted promotion superseding the petitioner.
iv) To hold and declare that the adverse A.C.Rs and the adversary memorandum against which the representation of the petitioner is pending due to the latches of the respondents, cannot be taken into account by the Departmental promotion Committee for considering and subsequent denial of promotion to the petitioner.
2. The main contention raised by the learned Counsel for the petitioner is as to whether the adverse remark for the period 1996 as well as adversary memorandum for the year 1999 are illegal, unsustainable and against the well settled cardinal principle of natural justice. He has further submitted that since his representation against it was pending for disposal and unless the same was decided the Departmental Promotion Committee was duty bound to consider the petitioner for promotion. His further grievance is that his juniors have been promoted ignoring the rightful claim of the petitioner only on the ground of adverse A.C.Rs without even disposing of his pending representation and the same has resulted in denial of his promotion which was illegal and punitive in nature. The petitioner has referred to and relied upon 2000 (2) PLJR pg. 289 and (1995) 3 SCC pg. 383 to support his contention that without the disposal of pending representation the adverse remark cannot be taken into account.
3. The learned Counsel for the petitioner has also filed a written notes of argument and has referred to and relied upon two more judgments in the written notes i.e. 2006 (1) SCC pg. 368 and 2008 (8) SCC pg. 725 to support his contention that the grading as average amounted to an adverse entry and required communication. There is no dispute with regard to the proposition of law in this regard that if there is an adverse entry the same should be communicated. However, on perusal of Judgment reported in 2006 (1) SCC pg. 368 I find that the same does not apply to the facts of the present case since there it was a case primarily on the issue of interpretation of Article 141 of the Constitution of India with regard to interpretation of Judgments. The second issue related to adverse remarks which was not communicated and the procedure to be adopted for recording of A.C.Rs. It also dealt with the modality provided for recording and communication of adverse entry for getting the desired improvement when there is an adverse/advisory remarks included in the Confidential Report. It further held that negligence has been taken as a weakness while planning the future placement and thus, the aforesaid Judgment does not apply to the facts of the present case. However, there is no dispute about the fact that the adverse entry was communicated to the petitioner herein.
4. The respondents in their counter affidavit have submitted that the adverse remark was communicated to the petitioner vide letter dated 28.5.1997 and he made a representation on 26.6.1997 and the same has been examined by I.G. (SWS) Mumbai who was pleased to reject the same being devoid of any merit vide its order No. E-15017/SWS/LBR/97/515 dated 28.1.2000. It has further been submitted by the learned Counsel for the respondents that the petitioner was superceded based on his service record, overall assessment and the adverse remark in his A.C.Rs and also in view of the fact that even his representation was rejected being devoid of merit. It has further been pointed out that there were serious latches on the part of the petitioner apart from being inefficient and irresponsible. During the period under report, a well planned theft of 49 Ms plates worth Rs. 8 lakhs had occurred in the stock yard of SAIL, Vizag on 2/3.5.96 and the petitioner due to lack of constant vigil of area under his responsibility was also held responsible for the same.
5. I have considered the rival submission and the pleadings. In the instant case there is no allegation of malafide or bias against the authority nor the process of selection is under challenge and the denial of promotion was due to the adverse remark in the A.C.Rs, and the overall assessment of his performance and efficiency. The main thrust of the argument on the part of the learned Counsel for the petitioner was that during the pendency of representation against adverse remark the same could not have been taken into account. The Hon'ble Supreme Court while considering a similar issue reported in (1995) 3 SCC pg. 383 at para 13 held that non-selection of the appellant by the Selection Board for promotion to the rank of Lt. General was not illegal as per the procedure adopted by them and the Selection Board took into consideration the adverse remarks therein which led to non-selection of the appellant but the same cannot be faulted more so when the statutory complaint against the adverse remark was rejected by the Central Government. It was also held that the Court cannot sit as an appellate authority over the acts and proceedings of the Selection Board. In the present case also the representation was finally rejected vide order dated 28.01.2000.
6. In the instant case the reporting officer had specifically advised the petitioner and had further cautioned him to be more vigilant especially on 2.6.1996 being an election date. In fact a meeting was also convened of all Gos on 30.4.96 for this purpose. The entire episode was found to be a serious breach in security resulting in theft of items worth Rs. 8 lakhs and this had a bearing directly on the organizational image.
7. In : (2008)8SCC725 the Hon'ble Supreme Court in the case of Dev Dutt v. Union of India and Ors. at para-37 held as under:
We further hold that when the entry is communicated to him the public servant should have a right to make a representation against the entry to the authority concerned, and the authority concerned must decide the representation in a fair manner and within a reasonable period. We also hold that the representation must be decided by an authority higher than the one who gave the entry, otherwise the likelihood is that the representation will be summarily rejected without adequate consideration as it would be an appeal from Caesar to Caesar. All this would be conducive to fairness and transparency in public administration, and would result in fairness to public servants. The State must be a model employer, and must act fairly towards its employees. Only then would good governance be possible.
8. There is no dispute about the settled law that any action which is punitive in nature and involves civil consequences has to mandatorily comply with the principles of natural justice. Natural justice is another name for common-sense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man.
9. The petitioner could not be empanelled by the D.P.C. due to his poor service record, negligence and on an over all assessment. The admitted fact remains that the adverse entry was communicated and the representation was also subsequently rejected on 28.1.2000. It has been rightly pointed out that if the representation was allowed and the adverse entry was expunged then the D.P.C. was empowered as per D.P. & Trg. Institution in para 71.2 of their O.M. dated 10.03.89 to convene a review D.P.C. to assess the suitability for promotion on the basis of the new status of A.C.R.
10. A Bench of three Hon'ble Judges of Hon'ble Supreme Court in a judgment reported in : [1995]2SCR532 categorically held as under:
With respect to the grievance that his statutory complaint ought to have been considered and disposed of before his case was considered by the Selection Board, it must be said that at best the said objection is merely technical. Had his statutory complaint been upheld wholly or partly, this grievance could have merited serious consideration but not when it has been dismissed. It is not suggested that the Central Government dismissed the said statutory complaint merely to buttress the non-selection of the appellant by the Selection Board. No allegation of mala fides has been made against the Central Government.
11. The Hon'ble Supreme Court in : 2007(209)ELT334(SC) while considering a similar issue wherein there was a difference of opinion between the Reporting Officer and the Departmental Promotion Committee while grading the petitioner therein held that the evaluation made with regard to adverse entry made by Expert Committee based on over all assessment as well as adverse entry should not be easily interfered with by the courts which do not have the necessary expertise to undertake the exercise that is necessary for such purpose. The same view was also taken in : AIR2005SC2853 and the Hon'ble Supreme Court held that when at no stage of the proceedings, either before the Tribunal or courts any allegation of malafide has been raised against the Selection Committee then it should not be interfered with.
12. Considering the aforesaid facts and circumstances of the case, I find no merit in the Writ Petition and the same is accordingly dismissed with no order as to costs.