Downgrading of A.C.R. remarks without reasons is impermissible and vitiates the selection process.

Heard Mr. Ashok Potsangbam, learned senior counsel for the appellant and also Mr. Kh. Nemaichand Singh, learned State counsel.

2. The appellant herein as writ petitioner filed W.P.(C) No. 548 of 2000 praying for appropriate directions for review of the D.P.C. proceedings held on 20.12,99 (Annexure-X/10) with other consequential reliefs. The appellant along with seven other officers were promoted to the post of Superintending Engineer (Electrical on the basis of the recommendation of the D.P.C. held on 20.12.99 under the auspices of the Manipur Public Service Commission. The appellant, despite promotion, was aggrieved as he was placed below the respondent Nos. 6,7,8 and 9 in order of merit.

3. The learned Single Judge dismissed the writ petition primarily on the ground that the respondent authority had made their own assessment, which cannot be termed as arbitrary and discriminatory and the court in judicial review is not permitted to act as a Court of appeal.

4. Mr. Potsangbam, learned senior counsel argued that the D.P.C. fell in error in the process of assessment of merit by following a method not permissible under the Rules. There is no dispute that the D.P.C. followed the guidelines prescribed by the Government of Manipur in the department of Personnel & Administrative Reforms vide Office Memorandum dated 20.11.82 and the said guidelines do not approve of the system of downgrading of the remarks in the A.C.R.

5. Mr. Nimaichand, learned State Counsel argued that the D.P.C. under the auspices of the Service Commission considered the repective cases of the officers and, thereafter, assessed their merits. According to the learned State counsel, in the process of assessment and evaluation of respective merit, the D P.C. is authorised to evolve its own method/mechanism, and no fault can be found with it.

6. In the Office Memorandum dated 20.11.82, in para 4, the related provision for preparation of year-wise panel by the D.P.C. is prescribed. We have carefully examined the aforesaid office memorandum and we do not find any provision permitting the D.P.C. to rewrite the A.C.Rs. for the purpose of downgrading.

7. Mr. Potsangbam, learned senior counsel relied upon the decision of the Supreme Court in Union of India -vs- Tulsiram Patel. (1985) 3 SCC 398 in order to bring home his contention that "when there is express mention of certain things, then anything not mentioned is excluded". It is related to the maxim "expressum facit cessare taciturn" which has been dealt with by the Hon'ble Supreme Court in the aforesaid judgment. We may, for better appreciation of the issue urged, quote the relevant part of the judgment which reads as follows:

"The-maxim" expressum facit cessare taciturn" ("When there is express mention of certain things, then anything not mentioned is excluded") applies to the case. As pointed out by this Court in B. Shankara Rao Badami v. State of Mysore, this well-known maxim is a principle of logic and common sense and not merely a technical rule of construction. The second proviso expressly mentions that clause (2) shall not apply where one of the clauses of that proviso becomes applicable. This express mention excludes everything that clause (2) contains and there can be no scope for once again introducing the opportunities provided by clause (2) or any one of them into the second proviso.".

Again in para 126 of the said judgment the Supreme Court held as follows:

"126. As pointed out earlier, the source of authority of a particular officer to act as a disciplinary authority and to dispense with the inquiry is derived from the service rules while the source of his power to dispense with the disciplinary inquiry is derived from the second proviso to Article 311(2). There cannot be an exercise of a power unless such power exists in law. If such power does not exist in law, the purported exercise of it would be an exercise of a non-existent power and would be void. The exercise of a power is, therefore, always