The main legal point established is that adverse remarks in ACRs must be communicated to the employee, and the employer cannot act on them without communication.

Heard Ms. A. Chakraborty, learned counsel appearing for the petitioner as well as Mr. S. Chakraborty, learned Additional Government Advocate appearing for the respondents.

2. By means of this petition, the petitioner has urged this court to direct the respondents no. 1, 2 and 3 to expunge all the adverse remarks as recorded in her Annual Confidential Report for the years 2009-10 and 2010-11. Further, the petitioner has pressed that the recommendation of the Departmental Promotional Committee (for short DPC) held on 14.09.2012 for appointment to the post of Office Superintendent on promotion by declaring the petitioner unfit for the promotion be declared unsustainable and set aside. The petitioner has further asked this court to quash the order of appointment of the respondent no.4 in the post of Office Superintendent vide Order under No. F.1-129/(Loose)/TW/ESTT/06-09/26671-78 dated 01.10.2012. The petitioner has also sought for direction upon the respondents no. 1, 2 and 3 to appoint her from 20.10.2012 with all financial benefits in the post of Office Superintendent.

3. This court at the outset has verified the ACRs of 2009-10 and 2010-11. It appears therefrom that in the ACRs of 2009-10 the petitioner had been assessed ‘Fair’ against the columns no. 6 to 13 by the Reporting Officer but against the columns no. 20 and 21, it has been recorded that the petitioner was not fit to continue in the post of Head Clerk for lack of fitness and thus it had been remarked that she was not fit for promotion. Similarly in the ACRs of 2010-11, the further adverse remarks had been made and virtually she had been treated as a non-performing Officer with eratic behaviour pattern. Against the column no. 21, again she was declared as ‘Not Fit’ for getting promotion to the higher post.

4. With the reply, the respondents have filed the ACRs of the previous years which according to them were considered by the DPC. It appears that the petitioner received the grade of ‘Good’. However in the previous ACRs, she was found fit for promotion. It is also an admitted position that the ACRs of the year 2009-10 and 2010-11 were not communicated to the petitioner before the DPC which was held on 14.09.2012. There is no dispute that the petitioner was senior to the respondent no.4 as the petitioner joined in the service on 08.05.2002 where as the respondent no.4 had joined in the service on 10.01.2006.

5. On scrutiny of the ACRs of all the Officers borne in the feeder post i.e. the Head clerk, the petitioner was found unfit by the DPC for promotion. As consequence of that observation, the respondent no.4 was recommended for promotion to the post of Office Superintendent and on accepting the said recommendation, the respondent no. 4 was appointed as the Office Superintendent by the Order dated 04.10.2012 (Annexure 7 to the writ petition).

6. The petitioner had challenged the said appointment earlier by filing a writ petition being WP(C) 550 of 2012. In the said writ petition, the petitioner has urged the similar grounds viz. the adverse remarks which were not communicated to her was considered by the DPC and the DPC beating the said untenable process had declared her as ‘unfit’ for the promotion. By the order dated 01.04.2013, the said writ petition being WP(C) 550 of 2012 was disposed of with the following direction:-

“Considering the entire facts and circumstances, it appears that the petitioner admittedly did not challenge the promotion of the respondent No.10 at the relevant point of time and after almost four years now challenges the said promotion. According to this Court, it would not be proper to interfere with the aforesaid promotion of respondent No. 10 at this belated stage as that would unsettled the settled position. However, as the petitioner has made a representation on 11.10.2012 to the Director cum Secretary, Tribal Welfare, Government of Tripura and admittedly, the adverse remarks in the ACRs which was considered by the DPC and on the basis