W S DANN Vs. STATE OF MEGHALAYA

JUDGEMENT

(1.) The petitioner j oined on 14.9.1979 as a Class-II Officer of the Meghalaya Animal Husbandry & Veterinary Service. On 11.2.1985, a gradation list of Class-II Officers of the Meghalaya Animal Husbandry & Veterinary Service was published, and in the said gradation list the petitioner was placed in 20th position and respondents-3 to 6 were placed in 21 st to 24th position. Hence, the petitioner was senior to respondents-3 to 6. By a notification dated 31.5.1985 of the Government of Meghalaya, Animal Husbandry & Veterinary Department, respondents-3 to 6 amongst others were promoted and appointed for a period of one year to officiate in Class-I posts of Meghalaya, Animal Husbandry & Veterinary Service. The petitioner submitted a representation dated 24.6.1985 to the Special Secretary to the Government of Meghalaya, Animal Husbandry & Veterinary Department, against such promotion of respondents-3 to 6 who were junior to the petitioner. In the meanwhile, by a letter dated 2.5.1985 of the Deputy Secretary to the Government of Meghalaya, Animal Husbandly & Veterinary Department, some adverse remarks recorded in the ACRs of the petitioner for the period 1.1.1984 to 31.12.1984 were communicated. The adverse remarks were, "Relation with Non-Officials: An indifferent Officer" After receiving the said communication of adverse remarks, the petitioner in his letter dated 8.7.1985 to the Deputy Secretary to the Government of Meghalaya, Animal Husbandly & Veterinary Department, requested him to enlighten the petitioner as to on which occasion he was found to be an indifferent officer in dealing with non-officials. Thereafter, the petitioner made several representations from time to time to the Government of Meghalaya in the Animal Husbandry & Veterinary Department against his supersession by junior officers. But when no relief was granted to the petitioner, he filled the present writ petition praying for quashing the notification dated 31.5.1985 by which respondents-3 to 6 were promoted to Class-I of the Meghalaya, Animal Husbandly & Veterinary Service. He has also prayed for a direction on the State-respondents to give him seniority in service over the said respondents-3 to 6.

(2.) An affidavit-in-opposition has been filed on behalf of State-respondents-1 and 2. In the said affidavit, it has not been disputed that the petitioner was above the respondents-3 to 6 in the gradation list of Class-II Officers published on 11.2.1985, but it has been stated that the Departmental Promotion Committee, (for short, "the DPC") which met on 14.5.1985 and which studied the ACRs of all concerned officers did not recommend the petitioner for promotion, but recommended 23 other officers including respondents-3 to 6 for promotion. In the said affidavit it has also been stated that the DPC made an observation that the petitioner could not be recommended for promotion as there were a number of remarks against him. For these reasons, the petitioner could not be promoted. Regarding the representation dated 8.7.1985 on the adverse remarks, it has been stated that the said representation was received by the Department on 19.7.1985, but could not be entertained as it was not submitted within the prescribed period of six weeks. In paragraph-8 of the said affidavit, it has however been stated that the representation of the petitioner dated 25.1.1990) was considered by the Department, and the DPC which met on 10.12.1990 recommenced the petitioner for promotion from Grade-II (Jr) to Grade-11 (Sr), and the petitioner was accordingly promoted by order dated 26.6.1991.

(3.) Mr K.S. Kynjing, learned senior counsel, appealing for the petitioner, submitted that the petitioner was serving in a remote area in Meghalaya, and received the letter dated 2.5.1985 of the Deputy Secretary to the Government of Meghalaya, Animal Husbandry & Veterinary Department, communicating the adverse remarks on 23.5.1985, but as soon as the petitioner received the same, he submitted his representation against the said adverse remarks in his letter dated 24.6.1983 to the Deputy Secretary to the Government of Meghalaya, Animal Husbandry & Veterinary Department. According to Mr Kynjing, the period of six weeks prescribed for making representation against any adverse remarks can only be counted from the date of receipt of the communication of adverse remarks by the petitioner and not from the date on which the communication was despatched by the authority. He submitted that in any case, adverse remarks were communicated by letter dated 2.5.1985, and before expiry of six weeks from 2.5.1985 the DPC met on 14.5.1985 and took into account the said adverse remarks and did not recommend the petitioner for promotion. Mr Kynjing submitted that it is now settled by a series of decisions of the Supreme Court as well as this Court that principles of natural justice would be violated if a Government servant is not given an opportunity to represent against the adverse remarks against him in his ACRs, and promotion is denied to him on the basis of such adverse remarks. He relied on the decisions of the Supreme Court in Gurdial Singh-Vs-State of Punjab, AIR 1979 SC 1622, Vijay Kumar, IAS-Vs-State of Maharashtra, AIR 1988 SC 2060, as well as the decision of this Court in N.R. Dutta- Vs-State of Nagaland, (1992) 2 GLR 437, in support of his aforesaid submission. According to Mr Kynjing, this is a fit case in which the impugned notification should be quashed by this Court, or, in the alternative the petitioner be given seniority over respondents-3 to 6 in Class-I of the Meghalaya, Animal Husbandly & Veterinary Service with retrospective effect.