R. K. JIBANLATA DEVI versus HIGH COURT OF MANIPUR THROUGH ITS REGISTRAR GENERAL AND OTHERS on 24 February 2023

1. By way of this petition preferred under Article 32 of theConstitution of India, the petitioner has prayed for an appropriate relief,direction or order to set aside the Departmental Promotion CommitteeH

(for short, ‘DPC’) dated 9.4.2021 denying her promotion to the post ofAssistant Registrar and to direct respondent Nos. 1 & 2 herein to hold afresh DPC.

2. The facts leading to the present writ petition in a nutshell are asunder:

The petitioner initially joined her services as Lower DivisionAssistant in the establishment of the Gauhati High Court in the year1991. Thereafter, she was promoted to the post of Upper DivisionAssistant in the year 1993. That thereafter she was promoted to thepost of Superintendent in the Gauhati High Court on 5.1.2012. That inthe year 2013, the High Court of Manipur came to be established as itwas separated from the Gauhati High Court. At the relevant time and tillthe High Court of Manipur Officers and Employees Recruitment andConditions of Service (Classification, Control, Appeal and Conduct) Rules,2020 (hereinafter referred to as the ‘Rules 2020’) came to be framed,the Manipur High Court was enforcing the Gauhati High Court ServiceRules, 1967 (hereinafter referred to as the ‘Rules 1967’).

2.1 The next promotion from the post of Superintendent was tothe post of Assistant Registrar. One post of Assistant Registrar fell vacanton 1.2.2019. As on August, 2020, four posts of Assistant Registrars wereavailable. Therefore, according to the writ petitioner, as after theestablishment of separate High Court of Manipur in the year 2013, therules for appointment and other service conditions of the staff weregoverned by the Rules, 1967 and the post of Assistant Registrar was tobe filled by way of seniority-cum-merit and the petitioner being seniormostamongst the Superintendents, she was entitled to the promotion to thesaid post of Assistant Registrar. Thereafter, the High Court of Manipurframed its own Rules, 2020. However, the DPC was held on 9.4.2021for promotion to the post of Assistant Registrar (six posts) including onevacant post of the year 2019 and the remaining posts which occurred inthe month of August, 2020. As per the Rules, 2020, last four years ACRswere required to be considered and accordingly DPC considered theACRs from 2016 onwards till the date of DPC held on 9.4.2021.

2.2 The DPC did not recommend the name of the petitioner andpromoted other persons – private respondents herein and hence aggrievedby the denial of promotion to the post of Assistant Registrar, the petitionerhas preferred the present petition under Article 32 of the Constitution ofIndia.

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AAt this stage, it is required to be noted that the petitioner has filedthe writ petition before this Court in the peculiar facts and circumstancesof the case and on the rule of necessity as there were three Hon’bleJudges in the Manipur High Court including the Chief Justice, out ofwhich two were the members of the DPC and the ACRs were consideredby the Chief Justice and therefore the present writ petition before thisBCourt.

3. Shri R. Bala Subramanian, learned Senior Advocate appearingon behalf of the petitioner has made the following submissions:

(i) That as the post of Assistant Registrar fell vacant on 1.2.2019Cand in the month of August, 2020 (4 posts) and the Rules, 2020came into force in the month of December, 2020 and prior theretothe Rules, 1967 were applicable, the Rules 1967 prevalent at therelevant time when the posts remained vacant were required tobe applied; D(ii) That under the Rules, 1967 which were prevalent at therelevant time, the promotion to the post of Assistant Registrarwas on the basis of the seniority-cum-merit and the petitionerbeing the seniormost in the cadre of Superintendent ought to havebeen promoted to the post of Assistant Registrar; E(iii) That as per the Rules, 1967, last five years ACRs were requiredto be considered for promotion to the post of Assistant Registraragainst which while applying the Rules 2020, last four years ACRshave been considered;

(iv) That as per the DPC Guidelines, the year wise vacancy wasFrequired to be considered and therefore as the post of AssistantRegistrar fell vacant on 1.2.2019, considering the vacancy of thatyear the DPC ought to have been held for promotion to the postof Assistant Registrar in the year 2019 itself and in any case asand when the DPC met, the Rules, 1967 ought to have been appliedconsidering the fact that one post of Assistant Registrar fell vacantGon 1.2.2019;

(v) That under the Rules, 2020, more candidates become eligiblewhich adversely affected the promotion of the petitioner as shewas required to compete with more persons on applying Rules,2020; H

(vi) That the ACR for the year 2016-17 having “Good” gradingwas not communicated to the petitioner and therefore the sameought not to have been considered by the DPC;

(vii) That the ACR for the year 2019-2020 having “Good” gradingwas communicated to the petitioner on 8.4.2021 granting 15 days’time to the petitioner to make representation against the said ACRand before even completion of the 15 days’ time, the DPC met on9.4.2021 itself and considered the ACR for the year 2019-2020having “Good” grading and accordingly considered the case ofthe petitioner for promotion.

3.1 Relying upon the decisions of this Court in the case of SukhdevSingh v. Union of India and Others, reported in (2013) 9 SCC 566;Prabhu Dayal Khandelwal v. Chairman, UPSC, reported in (2015)14 SCC 427 (Paragraphs 7 to 9) and Rukhsana Shaheen Khan v.Union of India and others, reported in (2018) 18 SCC 640, it issubmitted that the DPC had materially erred in taking into considerationthe ACR for the year 2016-17 (uncommunicated ACR) and also theACR for the year 2019-2020 which was communicated to the petitioneronly on 8.4.2021. It is submitted that if the ACRs for the years 2016-17and 2019-20 both having “Good” grading are excluded, in that case forrest of the years, the petitioner was having grading “Very Good” andtherefore the petitioner would have got the promotion accordingly.

3.2 Making above submissions and relying upon the aforesaiddecisions, it is prayed to direct the DPC/High Court to ignore theuncommunicated ACR for the year 2016-17 and also the ACR for theyear 2019-20, both having “Good” grading and to consider the case ofthe petitioner for promotion taking into consideration the remaining ACRs,namely, ACRs for the years 2017-18 and 2018-19 in which the petitionerwas having “Very Good” grading.

4. While opposing the present appeal, Shri MaibamNabaghanashyam Singh, learned counsel appearing on behalf of the HighCourt has submitted that the petitioner received “Very Good” gradingsonly in her ACRs for the year 2017 to 2019 and her ACR gradings were“Good” for the years 2015 and 2016.

4.1 It is submitted that the gradings in the ACRs for the years2017, 2018, 2019 and 2020 were communicated to the petitioner andothers on 08.04.2021, one day before the impugned Departmental AB

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APromotion Committee proceedings. It is submitted that this did not deprivethe petitioner and/or any other candidate for submitting theirrepresentations, if any, with regard to the said gradings within 15 daysfrom the date of receipt of such communication. It is submitted that infact other candidates submitted their representations on the very nextdate i.e. 09.04.2021 and the petitioner did not submit any representationBwhich she could have submitted like other employees/candidates. It issubmitted that as such in the present case the promotion orders in favourof the meritorious candidates were issued only on 28.04.2021, whichaccounted for the time period during which the petitioner or any othercandidate, having a grievance with respect to the gradings could haveCsubmitted their representations.

4.2 It is submitted that as such the interviews for the post ofAssistant Registrars were conducted by two Hon’ble Judges of the HighCourt on 09.04.2021. The gradings in the ACRs and information withregard to such gradings was not provided or made available to the Hon’bleDJudges conducting the interviews. It is submitted that as such the vivavoce of the petitioner and all other eligible candidates were not influencedand were independent of the gradings in the ACRs of the eligiblecandidates.

4.3 Now so far as the submission on behalf of the petitioner thatEas the vacancy arose on 29.01.2019 the said post ought to have beenfilled in by promotion immediately, occurring the vacancy and that as thepost fall vacant in the month of August 2020 and therefore the relevantrules – High Court Rules ought to have been made applicable. It issubmitted that it is ultimately for the employer/High Court to fill up thepost by promotion.F

4.4 Learned Counsel appearing on behalf of the High Court aswell as Shri Jaideep Gupta, learned Sr. Advocate appearing on behalf ofthe promoted candidates relying upon the decision of this Court in thecase of State of Himachal Pradesh vs. Raj Kumar, 2022 SCCOnLine SC 680 has vehemently submitted that as observed and heldGby this Court there is no rule of universal application that vacancies mustnecessarily be filled on the basis of rules which existed on the date whenthey arose.

Making the above submissions and relying upon above decisions,it is prayed to dismiss the present petition.H

5. We have heard learned counsel for the respective parties atlength.

6. In the present case the dispute is with respect to the post ofAssistant Registrar in the High Court of Manipur. Prior to the Rules2020, the promotion to the post of Assistant Registrar was governed bythe Gauhati High Court Service Rules, 1967. However, the ManipurHigh Court framed its own rules namely Rules, 2020. The DPC met tofill up the post of Assistant Registrar on 09.04.2021. Therefore, as suchthe Rules, 2020 which were prevailing at the time when the DPC metwere rightly considered.

6.1 As per the ‘Scheme of Examination’ for promotion/appointmentto the posts of Assistant Registrar under Schedule III of the Rules, 2020under Serial No. 12 which governs the “Assessment for Promotion toSuperintendent/Equivalent and above” the Departmental Promotionproceedings were required to be conducted. As per the said Rule atSerial No. 12, contained in Schedule III of the Rules, 2020, the assessmentfor promotion to the post of Superintendent/Equivalent and above wasto be made as under:

“12. Assessment for Promotion to Superintendent/Equivalent andits above:

(i) ACR Weightage : 80 marks

(ii) Viva Voce/ Interview : 20 marks (to assess the suitability andcompatibility of the candidate to the said post)”

6.2 As per Sl. No.13 of Schedule III, only when the merit of thecandidates is the same, promotion shall be given on the basis of seniority.

6.3 It is not in dispute and cannot be disputed that for the post ofpromotion to the Assistant Registrar the ACRs of preceding four yearsfrom the date of DPC were required to be taken into consideration.Therefore, in the present case the ACRs for the period between 2016-2017 to 2019-2020 were required to be taken into consideration and infact taken into consideration. As observed hereinabove out of 100 marksACR weightage was of 80 marks.

6.4 In the present case the petitioner got “Good” gradings for theyear 2016-17 and received “Very Good” gradings in her ACRs for theyears 2017-18 and 2018-2019. It was the specific case on behalf of thepetitioner which has not been denied that the ACRs grading of “Good”

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Afor the year 2016-17 was never communicated to the petitioner even tillthe DPC met. Therefore, as per the law laid down by this Court incatena of decisions more particularly, as observed and held by this Courtin Rukhsana Shaheen Khan (supra); Sukhdev Singh (supra) andDev Dutt vs. Union of India and Ors, (2008) 8 SCC 725uncommunicated adverse ACRs may be even with “Good” entry whichBcan be said to be adverse in the context of eligibility for promotion is notto be relied upon for consideration of promotion.

Therefore, uncommunicated ACR for the year 2016-17 havingthe grading “Good” could not have been relied upon for considerationfor promotion.C

6.5 Similarly so far as the ACR gradings for the year 2019-2020is concerned, admittedly the same was communicated to the petitioneron 08.04.2021, just one day before the DPC met on 09.04.2021. Thepetitioner was having 15 days’ time to make the representation againstthe ACR grading for the year 2019-2020. Before the 15 days were over,Dthe DPC met on 09.04.2021 and considered the case of the petitionerfor promotion. The submission on behalf of the High Court that the othercandidates who were also communicated the ACRs for the year 2019-2020 on 08.04.2021 submitted their representations on 09.04.2021 andtherefore the petitioner also could have submitted the representation on09.04.2021 like other candidates is concerned, it is neither here nor there.EThe fact remains that the petitioner was having 15 days’ time from08.04.2021 to make a representation. Therefore, either the DPC couldhave been postponed or the ACR for the year 2019-2020 ought not tohave been considered and the same ought to have been treated asuncommunicated ACR.F6.7 The sum and substance of the aforesaid discussion would be

F6.7 The sum and substance of the aforesaid discussion would bethat as the ACR Grading of “Good” for the year 2016-17 was notcommunicated till the DPC met, the same is to be ignored and/ or be notrelied upon for consideration of promotion. Similarly, the grading for theyear 2019-2020 also is to be excluded and/or be not relied upon forconsideration for promotion as the same was communicated onG08.04.2021 and the petitioner was granted 15 days’ time to makerepresentation and before the representation could be made the DPCmet on 09.04.2021 and considered the case of the petitioner for promotion.

6.8 At this stage the averments made in para 23 of the counter onbehalf of the High Court deserves to be noted. In paragraph 23, it isHstated as under:

R. K. JIBANLATA DEVI v. HIGH COURT OF MANIPUR THROUGHITS REGISTRAR GENERAL [M. R. SHAH, J.]

“23. That, as a matter of fact, the interviews for the post ofAssistant Registrar were conducted by two Hon’ble Judges ofthe Manipur High Court on 09.04.2021. The gradings in the ACRsand information with regard to such gradings was not provided ormade available to the Hon’ble Judges conducting the interviews.As such, the viva voce or the Petitioner and all other eligiblecandidates were not influenced and were independent of thegradings in the ACRs of the eligible candidates.”

Thus, according to the High Court, the grading in the ACRs andinformation with respect to such grading was not provided and/or madeavailable to the Hon’ble Judges conducting the interviews. The aforesaidis absolutely erroneous. As observed and held hereinabove the ACRweightage was to be given of 80 marks and therefore the ACRs gradingswhich carry a bigger portion of marks i.e., 80 marks out of 100 marksought to have been taken into consideration by the High Court.

7. In view of the above and for the reasons stated above, the caseof the petitioner for promotion to the post of Assistant Registrar as on09.04.2021 is required to be considered afresh ignoring theuncommunicated ACRs for the years 2016-17 and 2019-20 and her caseis required to be considered afresh taking into consideration the ACRsfor the years 2017-18 & 2018-19 for which the petitioner was having“Very Good” gradings.

8. In view of the above and for the reasons stated above, presentpetition is allowed. The DPC proceedings dated 09.04.2021 denying thepromotion to the petitioner for the post of Assistant Registrar are herebyquashed and set aside. The case of the petitioner for promotion to thepost of Assistant Registrar as on 09.04.2021 i.e., the date on which thejuniors came to be promoted is directed to be considered afresh ignoringthe uncommunicated ACRs for the years 2016-17 and 2019-20 andthereafter the DPC/competent authority to take a fresh decision inaccordance with law and taking into consideration the ACRs of remainingyears, i.e., 2017-18 and 2018-19. Such an exercise be completed withina period of six weeks from today.

8.1 In case after fresh exercise as above the petitioner is promotedto the post of Assistant Registrar, it goes without saying that she shall beentitled to all the consequential benefits including the arrears, seniorityetc. w.e.f. 09.04.2021 - the day on which the juniors came to be promoted.

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106SUPREME COURT REPORTS

[2023] 3 S.C.R.

APresent writ petition is accordingly allowed to the aforesaid extent.In the facts and circumstances of the case, there shall be no order as tocosts.

Divya Pandey

Writ petition allowed.

B(Assisted by : Abhishek Pratap Singh and Roopanshi Virang, LCRAs)

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