Advocates:
['DR N MOZIKA', 'ASG', '', 'L JANA', 'ML NONGPIUR', '', 'M CHANDA']

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Serial No.01

Regular List

HIGH COURT OF MEGHALAYA

AT SHILLONG

MC (WA) No.64/2021

Heard on: 17.03.2022

Date of Order: 23.03.2022

Union of India & ors

Vs.

Joseph K.S

Coram:

Hon’ble Mr. Justice Sanjib Banerjee, Chief Justice

Hon’ble Mr. Justice H.S. Thangkhiew, Judge

Appearance:

For the Appellants

: Dr. N Mozika, ASG with

Ms. T Sutnga, Adv

For the Respondent

: Mr. M Chanda, Adv with

Mr. ML Nongpiur, Adv

i) Whether approved for reporting in

Yes

Law journals etc.:

ii) Whether approved for publication

in press:

No

JUDGMENT: (per the Hon’ble, the Chief Justice)

Over the ages, jurists of unquestionable eminence have

instructed that the life of law is not logic; but it does not follow that law

is illogical or that it may defy common sense.

2.

The appellants herein, on the strength of high authorities that

have ruled the field for decades, seek to suggest as absolute a legal

proposition that jars at first blush. The appellants read such judicial

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precedents that cannot be questioned at this level to suggest that even

though a government employee must be made aware of every adverse

remark in his ACR that may stand in the way of his candidature being

considered for future promotion; but when such adverse remark may

result in the services of the concerned employee not being retained

after the completion of a specified number of years in service or upon

the employee attaining a specific age, the communication of such

adverse remark is not mandatory and may be dispensed with. Quite

plainly, it would not stand to reason that a higher right is conferred

when it comes to the denial of consideration for promotion, than when

the employee faces what is effectively a premature termination of

service. Of course, compulsory retirement in the usual course as per the

applicable service rules cannot be seen to be a punishment but, surely,

the prejudice suffered by an employee who is required to compulsorily

retire is no less – and is probably more – than when there is denial of

consideration for promotion.

3.

The question that arises for consideration is whether the

service jurisprudence that has developed in this country makes such a

distinction between promotion and compulsory retirement to the extent

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that an adverse remark that is capable of denying the concerned

employee the opportunity of being considered for promotion has

perforce to be communicated to him for him to have an opportunity to

make a representation thereagainst; but, even if an adverse remark in

the ACR or any action taken against him may invariably result in the

employee being compulsorily retired (at a specified level and not by

way of punishment), such adverse remark or action taken against him

need not be informed to the concerned employee for him to have a

chance to seek a review or reversal thereof.

4.

Before referring to the facts and the applicable service rules,

it may be profitable to preface the discussion by reading the seminal

exposition on the doctrine of precedents by Lord Halsbury in his oft-

quoted speech in the judgment reported at (1901) 1 A.C. 495 (Quinn v.

Leathem) which has been consistently followed in this country:

“Now before discussing the case of Allen v. Flood, (1898)

AC 1 and what was decided therein, there are two

observations of a general character which I wish to make, and

one is to repeat what I have very often said before, that every

judgment must be read as applicable to the particular facts

proved, or assumed to be proved, since the generality of the

expressions which may be found there are not intended to be

expositions of the whole law, but governed and qualified by

the particular facts of the case in which such expressions are

to be found. The other is that a case is only an aut