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2006 Supreme(Gau) 97
IN THE HIGH COURT OF GAUHATI (AIZAWL BENCH)
Biplab Kumar Sharma and Brojendra Prasad Katakey, JJ.
S.D. Majumdar - Appellants
Vs.
State of Mizoram and Ors. - Respondent
W.A. No. 5 of 2004
Decided On: 27.01.2006
For Appellant/Petitioner/Plaintiff: C. Lalramzauva, A.R. Malhotra and Lalduhawmi, Advs.
For Respondents/Defendant: N. Sailo, K.V. Tlangmawia and G. Raju, Advs.
The main legal point established in the judgment was the interpretation of the office memorandum dated 10.10.2002 and the clarification provided in the OM dated 13.9.2004, which emphasized the consideration of ACRs only up to a certain date for promotion.
Headnote:
ACR - Promotion Criteria Interpretation - OM dated 10.10.2002, OM dated 13.9.2004 - The court discussed the interpretation of the office memorandum dated 10.10.2002 issued by the Government of Mizoram in the Department of Personnel and Administrative Reforms, which laid down the criteria for promotion. The court also referred to the clarification provided in another OM dated 13.9.2004. The key legal provisions discussed were Clause 3.4(g) of the OM dated 10.10.2002 and the clarification issued in the OM dated 13.9.2004, which emphasized the consideration of ACRs only up to a certain date for promotion.
Fact of the Case:
The appeal pertained to the interpretation of the office memorandum dated 10.10.2002 regarding promotion criteria and the consideration of Annual Confidential Rolls (ACRs) for promotion to Engineering Grade-IV (Mechanical). The Respondent No. 6 was promoted based on the recommendation made, which the Appellant challenged.
Finding of the Court:
The court found that the ACRs only up to 31.3.2002 should have been considered by the Departmental promotion Committee (DPC) for the promotion, and the ACR for the year 2002-2003 was wrongly taken into consideration. The court set aside the recommendation made in favor of the Respondent No. 6 and directed the convening of a review DPC to consider the case of the incumbents, including the Petitioner and the Respondent No. 6, taking into account the ACRs only up to 31.3.2002 and excluding the one for the year 2002-2003.
Issues: The main issue was the interpretation of the office memorandum dated 10.10.2002 and the consideration of ACRs for promotion, specifically whether the ACR for the year 2002-2003 could have been taken into consideration by the DPC.
Ratio Decidendi: The court's decision was based on the interpretation of the relevant clause of the office memorandum dated 10.10.2002 and the clarification issued in the OM dated 13.9.2004, which emphasized the consideration of ACRs only up to a certain date for promotion.
Final Decision: The appeal was allowed, and the recommendation made by the DPC in favor of the Respondent No. 6 and his consequent promotion were set aside and quashed. The Respondents were directed to convene a review DPC to consider the case of the incumbents, including that of the Petitioner and the Respondent No. 6, taking into account the ACRs only up to 31.3.2002 and excluding the one for the year 2002-2003.
Judgment challenged vide dated: 15.05.2007
B.K. Sharma, J.
1. The unsuccessful writ Petitioner has preferred this appeal in respect of his grievance relating to the recommendation made in favour of the Respondent No. 6 for promotion to Engineering Grade-IV (Mechanical). In fact, consequent upon the recommendation so made, the Respondent No. 6 has been promoted and he has joined the promotional post.
2. The only issue, which falls for our consideration is to the interpretation in respect of the office memorandum dated 10.10.2002 issued by the Government of Mizoram in the Department of Personnel and Administrative Reforms (General Service Wing) laying down the criteria for promotion, which include the period for which the Annual Confidential Rolls (ACR) are required to be taken into account by the DPC towards consideration of the promotions of the eligible incumbents. In the instant case, the Respondent No. 6, who is junior to the Appellant/writ Petitioner has been recommended for promotion to Engineering Grade-IV in the Mechanical Wing of the department and pursuant to such recommendation the notification dated 6.12.2004 promoting him to the said Grade has also been issued and the Respondent No. 6 has joined the post by submitting his joining report on 7.12.2004.
3. The relevant clauses in the aforesaid OM dated 10.10.2002 are quoted below:
3.4 Confidential Rolls are the basic inputs on the basis of which assessment is to be made by each DPC. The evaluation of CRs should be fair, just and non-discriminatory, Hence,
(a) The DPC should consider CRs for equal number of years in respect of all officers considered for promotion subject to (c) below.
(b) The DPC should assess the suitability of the candidates for promotion on the basis of their service records and with particular reference to the CR for five preceding years, irrespective of the qualifying service prescribed in the Service Rules/Recruitment Rules. (If more than one CR has been written in a particular year all the CRs for the relevant years shall be considered together as the CR for one year).
(c)....
....
(g) ACRs of officers which became available during the year immediately preceding the vacancy/panel year should be considered by the DPCs even if DPCs are held later than the year of vacancy. In other words, for the vacancy/penal year, 2001-2002, ACRs upto the year ending 31st March, 2000 are required to be considered irrespective of the date of convening the DPC. However, ACRs upto the year ending 31st March, 2001 will be considered by the DPC if it sits after September of that year even if the vacancy falls within 2001-2002. (Emphasis added)
4. The aforesaid OM has further been clarified in respect of Clause 3.4(g) by another OM dated 13.9.2004, which reads as follows:
NO. A. 32012/1/2003-P&AR (OSW) Pt
GOVERNMENT OF MIZORAM
DEPARTMENT OF PERSONNEL &
ADMINISTRATIVE REFORMS
(GENERAL SERVICE WING)
....
OFFICE MEMORANDUM
Dated Aizawl, the 13th Sept., 2004 Sub: Procedure to be observed by Departmental promotion Committee.
In inviting a reference to this Department's O.M. No. A. 32012/1/81-APT(B)/Loose dated 10.10.2002 on the above subject, this is to clarify para 3.4(g) of the said O.M. that--if the DPC sits after September of the year 202, ACRs upto the year ending 31.3.2001 would be taken into consideration by the DPC while considering the vacancies that arose for the vacancy year 2001-2002.
Sd/-
Lalmalsawma
Secretary to the Govt. of Mizoram
Memo No. A. 32012/1/2003-P & AR
(SCW)/Pt: Dated Aizawl, the 13th Sept., 04
5. In the instant case, the controversy is as to whether the ACR for the year 2002-2003 could have been taken into consideration by the DPC. While it is the case of the Appellant that the ACR for the said year could not have been taken into consideration in terms of the aforesaid OMs, it is the case of the Respondent No. 6 that the ACR for the year was rightly taken into consideration by the DPC while considering the case of the incumbents for promotion to the aforesaid Gra
