WP(C) 854/2008 BEFORE HON’BLE MR. JUSTICE AMITAVA ROY The petitioner presently serving as Sr. Inspector of Factories u nder the Labour and Employment Department of the Government of Assam is before t his Court seeking an appropriate writ directing his promotion to the post of Add itional Chief Inspector of Factories, Labour and Employment, Assam, which he per ceives is due to him in terms of the judgment and order dated 9/7/2007 passed by this Court in WP(C) 5037/2004. 2. I have heard Mr. A.K. Bhattacharjee, Sr. Advocate, assisted by M r. S. Chamaria, Advocate for the petitioner and Mr. B.J. Ghosh, learned State Co unsel for the respondents. 3. The pleaded assertions to adequately appreciate the rival submis sions would first be essential to be scripted. According to the petitioner, he j oined as the Inspector of Factories in the year 1980 and was promoted as Sr. Ins pector of Factories on 13/10/1999. Projecting his grievance that not only his pr omotion as Sr. Inspector of Factories which was otherwise due in the year 1996 h ad been delayed and that though he was due to be elevated as the Additional Chie f Inspector of Factories in the year 2000, he was unfairly denied the same, he h ad approached this Court earlier with WP(C) 5037/2004 for redress. This proceedi ng was disposed of on 19/7/2007 with a direction to the respondents to consider his case along with that of the private respondents involved therein and other e ligible incumbents for promotion to the post of Additional Chief Inspector of Fa ctories in accordance with the Recruitment Rules. A time frame of three months w as prescribed by this Court to complete the exercise as ordered. 4. The petitioner has imputed that though he duly placed a copy of the aforementioned order before the concerned authorities, nothing materialised in terms thereof. On necessary enquiries being made by him, he thereafter came t o learn that meanwhile on 27/2/2008, the issue of promotion of eligible Inspecto r of Factories had been discussed by the Departmental Selection Board and that t hough his name for the post of Additional Chief Inspector of Factories was not r ecommended those of two officers junior to him i.e. Shri. C. Purakayastha and Sh ri G.C. Borah had been selected therefor. According to him, for the third post o f Additional Chief Inspector of Factories, one Shri Samiran Das, also an officer junior to him has been identified by denying his preferential right. The petiti oner has also alleged bias against two members of the Departmental Promotion Com mittee namely Mr. K.K. Mittal and Mr. C.R. Deka against whom Contempt Case (C) 9 /2008 had been instituted by him asserting deliberate non-compliance of the dire ctions of this Court contained in the judgment and order dated 19/7/2007 passed in WP(C) 5037/2004. The petitioner has insisted that as neither anything adverse to him had been indicated by the respondents in course of the adjudication of t he earlier writ proceeding nor any material bearing on his unsatisfactory perfor mance had been communicated to him thereafter and prior to the date of the meeti ng of the Departmental Promotion Committee i.e. 27/2/2008, denial of his promoti on is unfair, unjust and discriminatory. 5. The respondents in their affidavit have denied the charge of bia s and arbitrary deprivation of promotion of the petitioner on 14/10/1996 to the post of Joint Inspector of Factories. As a departmental proceeding was then pend ing against the petitioner, the Selection Committee’s recommendation qua him was kept in a sealed cover. However, the above recommendation could not be given ef fect to in view of C.R. 1458/97, Shri Chittaranjan Patowari versus State of Assa m and others, which was finally disposed of on 12/11/1998. While contending that the petitioner was not eligible for promotion to the post of Additional Chief I nspector of Factories in the year 2000 for not having five years service in the post of Sr. Inspector of Factories as prescribed under the Assam Factories Servi ce Rule, 1990 (hereafter referred to as the Rules), the answering respondents ha ve averred that his case along with others was duly placed before the Department al Selection Board in deference to the order dated 19/7/2007 passed in WP(C) 503 7/2004 but he was not found suitable for promotion. He, however, was confirmed a s Sr. Inspector of Factories on 20/2/2008. 6. The answering respondents have stated that the case of the petit ioner for promotion to the post of Additional Chief Inspector of Factories could not be considered within the period fixed by the Court for non-finalisation of the process relating to his relevant Annual Confidential Reports, which containe d adverse remarks. While confirming that in the meeting held on 27/2/2008, the D epartmental Selection Board had recommended Shri G.C. Bora and C. Purkayastha fo r promotion to the two posts of Additional Chief Inspector of Factories, the res pondents have averred that the third vacancy would be filled up in due course as per the existing Rules. They have denied that the pendency of the Contempt Case (C) 9/2008 has any bearing on the evaluation of the petitioner vis-à-vis the po st of Additional Chief Inspector of Factories. The respondents have indicated ab out the existence of adverse remarks against the petitioner in his Annual Confid ential Report for the years 2002-03 and 2005-06 and the communication thereof to him. According to them, on representations being submitted by the petitioner, s ome of such adverse remarks have been expunged as well. They have reiterated tha t though his case in terms of the judgment and order dated 19/7/2007 passed by t his Court in WP(C) 5037/2009 has been duly considered in terms of the Rules alon g with others similarly situated, he was not recommended for not having been fou nd suitable. 7. In his affidavit in reply, the petitioner in substance while rei terating his averments in the writ petition has stated that the adverse remarks recorded in his Annual Confidential Report for the period 2002-03 and 2005-06 we re communicated to him only on 19/7/2007 in response whereto he submitted his re presentation on 20/4/2007 for the excision thereof. He however admitted that by the letter dated 16/11/2007, he was intimated that some of the adverse remarks a s referred to therein for the years 2002-03 and 2005-06 has been expunged. The p etitioner thereafter on 26/12/2007 submitted another representation praying for obliteration of the other adverse remarks as well and though he followed up his request by subsequent correspondences, the same remained unheeded. The petitione r has questioned the belated communication of his adverse remarks as unfair and arbitrary. According to him, this Court having dwelt on the issue of his promoti on to the post of Additional Chief Inspector of Factories in the earlier round o f litigation, he by no means, could have been denied such promotion on the purpo rted basis of some adverse remarks in his Annual Confidential Reports for the ye ar 2002-03 and 2005-06. The petitioner has asserted that reference to such adver se remarks in his Annual Confidential Reports demonstrates lack of bonafide on t he part of the respondents. 8. The learned Sr. Counsel for the petitioner has emphatically urge d that the rejection of his (petitioner) case for promotion on the ostensible ju stification of adverse remarks in his Annual Confidential Reports (for short ref erred to as the ACR) for the years 2002-03 and 2005-06 is not only patently ille gal and discriminatory but also opposed to the quintessence of the directions co ntained in the judgment and order dated 19/7/2007 passed by this Court in WP(C) 5037/2004. As admittedly these adverse remarks had been communicated to the peti tioner only on 11/4/2007 the very purpose thereof stood frustrated by the undue delay and, therefore, the evaluation of his suitability by taking note of the sa me (adverse remarks) is obviously flawed, he urged. Mr. Bhattacharjee, without p rejudice to the above, has argued that as admittedly some of the adverse remarks for the year 2002-03 and 2005-06 had been expunged on representations being mad e by the petitioner, the assessment made by the Departmental Selection Board aga inst his suitability for promotion is manifestly unsustainable. The adverse rema rks not having been communicated to the petitioner in time as required by the As sam Services (Confidential Rolls) Rules, 1990, (hereafter referred to as the ACR Rules) the same could not have been acted upon to the prejudice of the petition er, he not having been accorded any scope to make amends therefor in time. The l earned Sr. Counsel for the petitioner contended that in any view of the matter, the adverse remarks contained in the petitioner’s ACR for the years 2002-03 have , as on date become stale and, therefore, his case ought to be considered afresh on the basis of the current relevant ACRs for promotion to the post of Addition al Chief Inspector of Factories. 9. The learned State Counsel in reply has argued that promotion is not a matter of right and the case of the petitioner having been duly considered in terms of the Rules in deference to the directions contained in the judgment and order dated 19/7/2007, his grievance to the contrary is obviously untenable. As the petitioner has not been found suitable for promotion on an appraisal of his relevant A.C.Rs. and other materials on record, his plea of non-compliance w ith the directions of this Court is plainly frivolous. With reference to the pet itioner’s A.C.Rs. for the subsequent years 2006-07, 2007-08 and 2008-09, the lea rned State Counsel has urged that the petitioner’s performance has not yet impro ved to entitle him to the promotion as sought for. The official records have bee n produced by the learned State Counsel for the perusal of this Court. 10. The pleadings of the parties and the arguments founded thereon h ave received the cautious consideration of this Court. A bare reading of the jud gment and order dated 19/7/2007 rendered in WP(C) 5037/2004 demonstrates that th is Court while negating the petitioner’s claim for retrospective promotion to th e post of Sr. Inspector of Factories had directed the State respondents to consi der his case along with that of the private respondents therein and other eligib le incumbents for promotion to the post of Additional Chief Inspectors of Factor ies in accordance with the Rules. The order discloses that the official responde nts in that proceeding had not filed their counter. It does not bear any referen ce of any adverse remarks in any of the A.C.Rs. of the petitioner. It is a matte r of record that the adverse remarks recorded in his A.C.Rs. for the years 2002- 03 and 2005-06 had been for the first time communicated to him only on 11/4/2007 i.e. during the pendency of the earlier writ petition. Noticeably, however, ins pite of the above, though the petitioner insisted on a direction for considerati on of his case for promotion to the post of Additional Chief Inspector of Factor ies, no disclosure thereof was made by the official respondents before this Cour t. The documents accompanying the pleadings of the parties proclaim that on a re presentation being made by the petitioner to the adverse remarks on 20/4/2007, t he Commissioner and Secretary, Labour and Employment Department, by his order da ted 16/11/2007 had expunged some of such remarks contained in his A.C.Rs. for 20 02-03 and 2005-06 while retaining the rest. The petitioner represented further a gainst this decision on 26/11/2007. While the same was pending for consideration , he was communicated on 11/2/2008 with some adverse remarks in his A.C.R. for t he period 26/8/2002 to 31/3/2003. He represented against the same on 19/2/2008 a nd eventually by order dated 26/2/2008, the aforementioned authority while dispo sing of his representations dated 20/4/2007 and 19/2/2008 expunged the remarks i n his A.C.R. for the period 26/8/2002 to 31/3/2003 to the extent it was done for his ACR of 2002-03 earlier. The negative remarks for his A.C.R. 2005-06 were, h owever, retained. The meeting of the Departmental Selection Board incidentally w as held on the next date i.e. 27/2/2008 and as the minutes thereof would reveal the petitioner was not recommended for promotion being construed as unsuitable o n the basis of the adverse remarks in his A.C.R. for the last five years. Eviden tly the Departmental Selection Board decided against his suitability, taking not e of the adverse remarks of the petitioner’s A.C.R. for the period 2002-03 and 2 005-2006. This is so inspite of the fact that these remarks had been admittedly conveyed to him on 11/4/2007 i.e. about 4 years from the recording thereof vis-à -vis his A.C.R. of 2002-03 and one year from his A.C.R. of 2005-06. 11. The A.C.R. Rules which codifies the procedure for writing confid ential reports of the employees of the Government of Assam inter alia mandate th e communication of the adverse remark of the person concerned as well as conside ration of any representation by him or her against the same. Rule 10 makes it ob ligatory on the part of the authorities concerned to communicate such an adverse remark to the person concerned within one month of its acceptance by the Accept ing Authority. If a representation is submitted by the employee, the same has to be peremptorily considered by the authority receiving the same and if considere d necessary in consultation with the Reporting, Reviewing or Accepting Authority and pass orders thereon as far as possible within three months from the date of its submission. Thereby, the authority concerned may either reject the represen tation or tone down the remark or expunge the same. Rule 13 propounds that where the Reviewing and the Accepting Authority grades the employee concerned as Good , Very Good, Above Average and Outstanding inspite of adverse remarks recorded b y the Recording Officer, the entries recorded in the ACR are not to be treated a s Adverse. This provision, however, makes it incumbent on the Reviewing Authorit y and Accepting Authority to record in writing that they are not in agreement wi th the assessment of the Recording Officer as well as the reasons for their said conclusion. 12. The above provisions of the ACR Rules therefore unambiguously pr omulgate the obligation of the concerned authorities not only to communicate the adverse remarks recorded in the A.C.R. of an employee within the time frame fix ed but also to dispose of any representation(s) made against the same within the period prescribed. It is no longer res integra that the underlying objective of communicating an adverse remark to the employee in default in time is to acquai nt him with the deficiencies in his performance at the earliest so as to provide him a scope to rectify his failings and omissions not only to sustain, his pros pects for further advancement in the career but also to foster administrative ef ficiency in over all public interest. Such a timely action on the part of the au thorities concerned is not only a wholesome obligation on their part but also en sures transparency in State action catering to good governance. The respondent a uthorities in the instant case, judged by the above imperatives of the ACR Rules have been clearly in default vis-à-vis the adverse remarks recorded in the peti tioner’s ACR for the year 2002-03 and 2005-06 which visibly had contributed to t he rejection of his candidature for promotion to the post of Additional Chief In spector of Factories on 27/2/2008. 13. The respondents noticeably appear to have remained inert in this regard qua the petitioner’s ACRs for the years 2007-08 and 2008-09 as well. Tho ugh he has been graded ’Good’ by the Reviewing and the Accepting Authority for t he period 1/3/2006 to 31/3/2007, he has been branded as ’Below Average’ by the R eporting Authority as well as the Reviewing Authority for the period 1/4/2007 to 31/3/2008 and the period ending 28/2/2009. The Accepting Authority i.e. the Com missioner and Secretary to the Government of Assam, Labour and Employment and Te a Tribe Welfare Department for both the years, however, has observed that the ne gative remarks recorded against the petitioner are not acceptable as those are n ot supported by documents and appear to be based on biased opinion . However, t his authority has rated the petitioner as ’Average’. It passes one’s comprehensi on as to how the petitioner could be graded as ’Average’ by the Accepting Author ity if the negative remarks bearing on his performance and other relevant aspect s of his personality as recording by the Reporting Authority as well as the Revi ewing Authority had been dismissed as being not supported by any document and in stead founded on a biased opinion . Toning down of the grading ’Below Average’ to ’Average’ in the above premise cannot be conceivably automatic. There is no r eason what so ever to grade the petitioner ’Average’ by the Accepting Authority if the adverse remarks recorded by the Reporting as well as the Reviewing Author ity stand effaced. Be that as it may, the remarks of the Accepting Authority dis close that he had not been furnished with full facts and particulars relating to the petitioner’s performance during the periods in question. Noticeably, the pe titioner has not been made aware of the grading awarded by the Accepting Authori ty for these periods. This assumes importance in view of the fact that at the ti me of consideration of the petitioner afresh for promotion to the post of Additi onal Chief Inspector of Factories, if otherwise qualified therefor, the ACRs amo ngst others for the period 1/4/2007 to 31/3/2008 and 1/4/2008 to 28/2/2009 would assuredly be taken note of. This Court is of the opinion that having regard to the background of facts and the relevance of the ACRs for these periods on the p etitioner’s prospects for such promotion, the same ought to be communicated to h im so that if advised, he may submit his representation(s) whereupon those be co nsidered by the concerned State authority so that he may not have any grievance of having been denied a timely communication thereof as had happened earlier. 14. On a totality of the considerations as above, this petition is disposed of with a direction to the Chief Inspector of Factories, Assam, Guwahat i, to forthwith communicate to the petitioner the contents of his ACRs for the p eriod 1/4/2007 to 31/3/2008 and the period ending 28/2/2009. If the petitioner s ubmits his representation(s) against the same, those would be duly considered in accordance with the ACR Rules and the decision would be communicated to him wit hout delay. As in terms of the ACR Rules, delay has already occurred in the matt er of communication of such remarks, this Court considers it expedient to fix a time schedule for the exercise ordered. The respondent authorities within a week from the date of submission of the certified copy of this order would make the communication of the contents of the aforementioned ACRs to the petitioner and t hereupon, he, if so advised, would submit his representation within a period of 60 days from the date of receipt thereof. In such a case, the concerned responde nt authority would dispose of the representation(s) within a period of one month therefrom and communicate the decision to the petitioner immediately thereafter . After this exercise is over, the petitioner’s case, if a vacancy exists as on date in the post of Additional Chief Inspector of Factories would be considered along with other eligible candidates under the Rules and an appropriate decision would be taken. The entire process should be completed within a period of four months herefrom. The petition stands disposed in the above terms. No costs.