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Gauhati High Court
Ujjal Bhuyan, J.
Indrani Bora & Ors. - Appellant
Versus
State of Assam & Ors. - Respondent
WP (C) No. 4080 & 4157 of 2013
Decided On : 24-09-2013
Assam Public Service Commission (Limitation of Function) Regulations, 1951 – Regulation 4(d) – Assam Taxation Service Rules, 1995 – Rule 12 – Assam Services (Confidential Rolls) Rules, 1990 – Constitution of India, 1950 – Article 14 – Promotion – Case of the petitioners is that they are serving as Inspector of Taxes in the Finance (Taxation) Department, Government of Assam since 16.08.1999 – After rendering service for more than 14 years, petitioners are entitled for promotion to the next higher rank of Superintendent of Taxes and were legitimately expecting such promotion – Held, When the bench mark to be considered for promotion was “very good”, the entry of “good” which was recorded in the ACR of the appellant in that case and was found not communicated to him, should not have been taken into consideration for promotion to the higher grade – Grant of a “good” entry would be of no satisfaction to the incumbent if it infact makes him ineligible for promotion or has an adverse effect on his chances, held that a person getting any of the entries from “poor” to Very good” should be communicated the entry so that he has an opportunity of making a representation praying for its upgradation and that such a representation should be decided fairly and within a reasonable period by the authority concerned – Authority concerned has been indicated to be an authority higher than the one who gave the entry – Non-communication of entries would be arbitrary and violative of article 14 of the Constitution – Writ Petitions Disposed of
1. These two writ petitions raise identical legal issue and are being disposed of by this common judgment and order.
2. In WP(C) No.4080/2013, there are three petitioners whereas in WP(C) No.4157/2013, there is one petitioner. The four petitioners are serving as Inspector of Taxes in the Finance (Taxation) Department, Government of Assam. They are aggrieved by promotion of respondent Nos. 6 to 23 (same set of respondents in both the cases) from the post of Inspector of Taxes to the post of Superintendent of Taxes superceding them.
3. Case of the petitioners is that they are serving as Inspector of Taxes in the Finance (Taxation) Department, Government of Assam since 16.08.1999. After rendering service for more than 14 years, petitioners are entitled for promotion to the next higher rank of Superintendent of Taxes and were legitimately expecting such promotion.
4. Service of the petitioners is governed by the Assam Taxation Service Rules, 1995. Under the Rules, promotion from the post of Inspector of Taxes is to Superintendent of Taxes. Eligibility requirement for such promotion is that one should complete 10 years of service as Inspector of Taxes, should successfully undergo the training and pass the departmental examinations as prescribed. Cadre strength of Superintendent of Taxes is 28 and under the Rules, 2/3rd of the cadre strength are to be filled up by way of promotion, which is 18 posts. As per Rule 12(4) of the Rules, selection for promotion has to be on the basis of merit with due regard to seniority.
5. As far back as on 09.08.2010, Commissioner of Taxes, Assam (respondent No.3) had written to all the Inspector of Taxes including the petitioners and the respondents requesting them to submit their Annual Confidential Reports (ACRs) for the years 2005-06 to 2009-2010 for consideration for promotion to the next higher cadre. Accordingly, petitioners submitted their ACRs.
6. Notification dated 15-05-2013 was issued by the Finance (Taxation) Department, Government of Assam, publishing the gradation list in the cadre of Inspector of Taxes for the calendar year 2011. Petitioners of WP(C) No.4080/2013 are placed at Serial Nos. 10, 15 and 26 in the said gradation list whereas petitioner of WP(C) No.4157/2013 is placed at Serial No. 12. Respondent Nos. 6 to 23 are placed at Serial Nos. 7 to 9, 11, 13, 14, 16 to 25, 27 and 28 in the said gradation list. Thus, petitioners are senior to many of the above respondents in the said gradation list.
7. Notification dated 20.07.2013 was issued by the Finance (Taxation) Department temporarily promoting respondents 6 to 23 to the post of Superintendent of Taxes under Regulation 4 (d) of the Assam Public Service Commission (Limitation of Function) Regulations, 1951.
8. Aggrieved by the promotion of respondents 6 to 23 to the post of Superintendent of Taxes and denial of such promotion to the petitioners, the two writ petitions have been filed assailing such promotion of respondents 6 to 23 and seeking a direction to the State respondents to hold fresh selection for promotion to the post of Superintendent of Taxes.
9. Contention of the petitioners is that under Rule 12(4), selection for promotion is to be made on the basis of merit with due regard to seniority. However, if the Selection Committee does not consider an officer suitable for promotion according to seniority, it shall record the reasons in writing and forward the same to the appointing authority. To the best of their knowledge, there are no adverse entries in the ACRs of the petitioners. Remarks made in the ACRs were not communicated to them as per mandate of law laid down by Hon'ble Supreme Court in Dev Dutt v. Union of India & Ors. reported in (2008) 8 SCC 725. As a matter of fact, Government of Assam in the Personnel (A) Department had issued office memorandum dated 25.04.2011 laying down detailed guidelines for preparation of ACRs in the light of the judgment in Dev Dutt (supra). It provides for communication of c
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