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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH, AIZAWL BENCH
MICHAEL ZOTHANKHUMA, J.
Lalthankima - Petitioner
Versus
State of Mizoram, Res. by The Chief Secretary to the Govt. of Mizoram & Ors. - Respondents
W.P.(C) No. 104 of 2017
Decided On : 14-02-2022
Rights of Person with Disability Act, 2016 - Section 20 - Post of DTO - Promotion - Petitioner's case in brief is that for purpose of promotion to vacant post of DTO, ACR of 5 years of petitioner, respondent No. 7 and one C. were considered by respondent No. 6, MPSC - However, as petitioner had not attained bench mark of Very Good for promotion to group 'A' post of DTO, petitioner was not selected and respondent No. 7 who attained bench mark of 'Very Good', was recommended for promotion by MPSC vide Meeting Minutes of MPSC dated - Consequently, respondent No. 7 was promoted to post of DTO vide notification dated - Petitioner's counsel submits that respondent No. 6 had considered ACRs of candidates for promotion pertaining to years - As petitioner's ACR for all the years under consideration was 'Good', except for year where he was graded Very Good', petitioner did not attain bench mark of Very Good', as required in terms of procedure to be observed by Departmental Promotion Committees contained in Office Memorandum dated issued by Govt. of Mizoram, Department of Personnel & Administrative Reforms - Whether delay in communicating to petitioner, overall grading given in petitioner 4 ACRs for years caused any prejudice to petitioner's case when MPSC (respondent No. 6) considered candidates for promotion to post of DTO.
Finding of the Court:
It is also noticed that after promotion of respondent No.7 to post of DTO, no representation has been made by petitioner to State respondents challenging said promotion - Though petitioner has taken stand that he has not signed ACR for year in his representation dated, averments made in affidavit-in-opposition, which has not been controverted by petitioner shows that ACRs of petitioner for year had been made and submitted by him - regard to petitioner's contention that petitioner should have been considered for promotion on ground of his disability in terms of PWD Act, 2016, petitioner has not been able to show he has been discriminated against in terms of PWD Act, 2016 - Further, petitioner having been considered for promotion in terms of 1993 Rules and OM dated, Court finds that no legal or fundamental right of petitioner has been violated by respondents.
Result: Writ petition is accordingly dismissed
JUDGMENT :
Heard Mr. B. Lalramenga, learned counsel for the petitioner. Also heard Mrs. H. Lalmalsawmi, learned Govt. Advocate for the respondent Nos.1-5 and Mr. J.C. Lalnunsanga, learned counsel for the respondent No.6. No one appears for the respondent No.7.
2. The petitioner being aggrieved by the promotion of his junior i.e. the respondent No.7 from the post of Motor Vehicle Inspector (MVI) to the post of District Transport Officer (DTO) (Group B post), has prayed for setting aside the promotion of the respondent No.7 and prayed for a direction to be issued promoting the petitioner to the post of DTO.
3. The petitioner’s case in brief is that for the purpose of promotion to the vacant post of DTO, the ACR of 5 years of the petitioner, the respondent No. 7 and one C. Lalawmpuia were considered by the respondent No. 6, MPSC. However, as the petitioner had not attained the bench mark of ‘Very Good’ for promotion to the group ‘A’ post of DTO, the petitioner was not selected and the respondent No. 7 who attained the bench mark of ‘Very Good’, was recommended for promotion by the MPSC vide the Meeting Minutes of the MPSC dated 22.03.2017. Consequently, the respondent No. 7 was promoted to the post of DTO vide notification dated 04.04.2017.
4. The petitioner’s counsel submits that the respondent No. 6 had considered the ACRs of the candidates for promotion pertaining to the years 2007-08, 2008-09, 2009-10, 2010-11 and 2011-12. As the petitioner’s ACR for all the years under consideration was ‘Good’, except for the year 2007-08 where he was graded ‘Very Good’, the petitioner did not attain the bench mark of ‘Very Good’, as required in terms of the procedure to be observed by Departmental Promotion Committees contained in the Office Memorandum dated 15.07.2010 issued by the Govt. of Mizoram, Department of Personnel & Administrative Reforms (General Service Wing).
5. The petitioner’s counsel submits that the petitioner not being given the benchmark of “Very good” was akin to having being graded as Adverse. He submits that the ACR gradings for the 4 (four) years from 2008-09 till 2011-12 was communicated to the petitioner by the respondent No. 5 vide letter dated 21.10.2016 and he was asked to submit a representation in this regard within 10 (ten) days. Thereafter, another letter dated 02.11.2016 was issued by the respondent No. 5 to the petitioner stating that he was being furnished with copies of the ACRs for the year ending 31.03.2009, 31.03.2010, 31.03.2011 and 31.03.2012, wherein his overall grading was below the bench mark and he was asked to submit a representation on or before 14.11.2016. The petitioner thereafter submitted a representation dated 14.11.2016 stating that he was graded below the bench mark in the above 4 (four) ACRs due to him suffering from stroke and high blood pressure for which he was unable to do anything. In his representation, the petitioner also stated that he could provide his Hospital report and Hospital papers to prove his medical problem. He also denied that the signature in his ACRs for the year 2008-09 and 2009-10 were his signatures. The petitioner also states in his representation dated 14.11.2016 that he did not write the ACRs for the years 2008-09 till 2011-12. The petitioner in his representation thus states that though he is handicapped, he could perform the job required of a DTO even with his physical infirmity. He accordingly prayed that he should be promoted to the post of DTO.
6. The petitioner’s representation was thereafter rejected by the respondent No. 5 vide letter dated 20.12.2016, which states that the petitioner’s representation could not be accepted in law.
7. The petitioner’s counsel submits that the delay in communicating the Adverse grading of the petitioner in his ACRs for the 4 years commencing from 2008-09 to 2011-12 being beyond the period of 3 (three) months, in terms of th
No prejudice has been caused to the petitioner, as the petitioner was considered for promotion. However, he was not promoted due to the petitioner not attaining the bench mark.
Non-communication of adverse ACR within the stipulated time period can adversely affect a government servant's career and should not form the basis for denying benefits, as established by legal princ....
Denial of promotion based on non-communicated below benchmark ACRs violates Article 14, and such non-communication is arbitrary and illegal.
Non-communication of ACR entries is arbitrary and violates Article 14, but does not invalidate subsequent promotion if criteria are met.
Uncommunicated 'average' ACRs cannot adversely impact promotion under merit-cum-seniority; must be communicated for representation, else ignored as violative of Article 14 and natural justice princip....
Timely communication of adverse ACRs is essential for fair evaluation and promotion of public servants; delays violate natural justice principles.
Downgrading an employee's performance ratings without communicating the reasons or providing an opportunity for a hearing violates the principles of natural justice. Uncommunicated adverse entries ca....
Uncommunicated ACR entries violate the right to fair representation under Article 14 of the Constitution, necessitating communication of all gradings to public servants for promotion processes.
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