C. Haridas v. Oriental Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **FRIDAY, THE 15TH DAY OF NOVEMBER 2013/24TH KARTHIKA, 1935** ## **WP(C).No. 36570 of 2010 (U)** ## **----------------------------** ## **PETITIONER :** **--------------------------** **C.HARIDAS, S/O.C.S.CHANDRASEKHARAN NAIR, AGED 45 YEARS, ASSISTANT, THE ORIENTAL INSURANCE CO.LTD., REGIONAL OFFICE,COCHIN-18.** **BY ADVS.SRI.S.SREEKUMAR SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.S.VAIDYANATHAN** ## **RESPONDENT(S):** - **----------------------------** **1. THE ORIENTAL INSURANCE CO.LTD., REGIONAL OFFICE, COCHIN-18.** **2. THE DEPUTY GENERAL MANAGER, THE ORIENTAL INSURANCE CO.LTD.,** **REGIONAL OFFICE,COCHIN-18.** **3. THE REGIONAL MANAGER AND PROMOTING AUTHORITY, THE ORIENTAL INSURANCE CO. LTD., REGIONAL OFFICE, COCHIN-18.** **4. P. GIREESH KUMAR, DIVISIONAL OFFICE, THE ORIENTAL INSURANCE CO.LTD., MANJERI, PIN-676 121.** **5. P. SREEKUMAR, ASSISTANT, DIVISIONAL OFFICE, THE ORIENTAL INSURANCE COMPANY, CALICUT, PIN-678 001.** **6. P.L.JOSE, ASSISTANT, BRANCH OFFICE, THE ORIENTAL INSURANCE COMPANY, KUNNAMKULAM, PIN-680 503.** **7. SAJINI VARGHESE, ASSISTANT, BRANCH OFFICE, THE ORIENTAL INSURANCE COMPANY,** **RANNI, PIN-689 672.** **R1 TO R3 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-06-2013 , THE COURT ON 15-11-2013 DELIVERED THE FOLLOWING:** **sts** ## **WP(C)NO.36570/2010** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE PROMOTION POLICY FOR SUPERVISORY, CLERICAL AND SUBORDINATE STAFF, 2008 ISSUED BY THE ORIENTAL INSURANCE COMPANY LTD.** - **P2 COPY OF THE NOTICE ISSUED BY THE ORIENTAL INSURANCE CO. LTD. DATED 26/11/2010** - **P3 COPY OF THE LIST DATED 30/11/2010 PUBLISHED BY 3RD RESPONDENT.** - **P4 COPY OF THE REPRESENTATION DATED 06/12/2010 SUBMITTED BY THE PETITIONER.** - **P5 COPY OF THE APPLICATION DATED 6/12/2010 UNDER RIGHT TO INFORMATION ACT** - **P6 COPY OF THE REPLY IN EXT.P5** ## **RESPONDENT'S EXHIBITS: NIL** ## **/TRUE COPY/** ## **P.S.TO.JUDGE** **sts** A.M.SHAFFIQUE, J. ---------------------------------------------------W.P.(C) No. 36570 of 2010-U --------------------------------------------------Dated this the 15[th] November,2013 **J U D G M E N T** This writ petition is filed challenging Ext.P3 and for a direction to respondents 1 to 3 to promote the petitioner to the post of Senior Assistant with effect from 30.11.2010 with all monetary benefits. Ext.P3 is a promotion list prepared by the first respondent for implementation of promotion policy for supervisory, clerical and subordinate staff to the post of Senior Assistant. 2. The facts as disclosed would show that the petitioner was appointed as Assistant under the first respondent in 1990. The post of Assistant is a feeder category to the post of Senior Assistant. Ext.P1 is a policy framed by the first respondent relating to the promotion to the supervisory, clerical and subordinate staff of the first respondent in the year 2008. Persons who acquires 2 W.P.(C) No. 36570 of 2010-U certain years of service in the Assistant scale is entitled to be promoted to the cadre of Senior Assistant. As per clause 14(b) of Ext.P1 persons who have put in at least 3 years in the cadre and are qualified as A.I.I.I or A.C.I.I or have passed three subjects of the Institute of Actuaries shall be eligible for consideration for promotion to the cadre of Senior Assistant. As per clause 14.1 selection shall be made on the basis of seniority, qualifications and work record. Petitioner has 20 years of service in the cadre and qualified as A.I.I.I. As per clause 16 of Ext.P1, a Scheme of Weightage is mentioned for various promotion criteria to different cadres. In respect of seniority to the post of Senior Assistant, 40 marks is given for seniority, 30 marks for qualification and 30 marks for work record. The total marks is 100. Clause 17.3 relates to work record which inter alia states that the confidential report for the past three years will be taken into consideration and they shall be rated by the Promotion Committee as per the Scheme of Rating the Confidential W.P.(C) No. 36570 of 2010-U 3 Report. The minimum marks to be obtained for securing is 30 marks in the aggregate. 3. For the year 2010 the number vacancies of Senior Assistant was 7 of which 4 were general and 3 were reserved of Scheduled Tribes. Ext.P2 is a final panel of employees eligible to be considered for promotion to the cadre of Senior Assistant. Petitioner is Sl. No. 1 and respondents 4 to 7 are Sl.Nos. 2 to 5 respectively. The petitioners and respondents 4 to 7 secured total of 63 marks each for seniority and qualification. 4. Ext.P3 is a list dated 30.11.2010 published by the 3rd respondent in which the petitioner's name has been omitted and respondents 4 to 7 alone are included. Petitioner submitted Ext.P4 representation dated 6.12.2010 complaining about the non-inclusion of his name and requesting for a review. The main contention urged by the petitioner is that the confidential report had not been communicated to the petitioner and since he was not aware of such confidential report, the same should not W.P.(C) No. 36570 of 2010-U 4 have been considered for promotion. 5. Counter affidavit is filed by respondents 1 to 3 inter alia contending that the confidential report for the past 3 years were taken into consideration and rated by the Promotion Committee as per the Scheme of Rating of the Confidential Reports. It is contended that all the candidates have scored 63 marks and had equal opportunity for being considered for promotion subject to the marks required in the work record. The respondents had also shown the marks obtained by each candidate in respect of the confidential report. The petitioner got 27.60 in the year 2007, 28.67 in the year 2008 and 30 in the year 2009 having an average of 28.76. The 4[th] respondent had 27.36 marks for the year 2007 and 30 each for the next two years and having an average of 29.12. All the other three candidates got 30 each in the respective years from 2007 to 2009. Therefore petitioner's total marks was 91.76 which was lowest among them. This Court had also called for the file in this W.P.(C) No. 36570 of 2010-U 5 connection, which is produced by the learned counsel for respondents 1 to 3. The file indicates the method of evaluation and the confidential record of the candidates. In regard to the rating sheet prepared by the committee for the year 2007 petitioner was given “outstanding” grading for work knowledge and work performance. In regard to personal traits he was given “Average” but was treated as “Above Average”. In 2008, he was given “Above average” only in one item among the personal traits and in regard to other parameters it was “outstanding”. In the year 2009 he was given “outstanding” for all the parameters. 6. Heard the learned counsel appearing for the petitioner and learned counsel appearing for respondents 1 to 3. 7. The learned senior counsel appearing on behalf of the petitioner relied upon the judgment of the Supreme Court in **Dev Dutt** v. **Union of India** (2008(8) SCC 725) to contend that non-communication of the entry in the ACR amounts to arbitrariness as it deprives the employee W.P.(C) No. 36570 of 2010-U 6 concerned from making a representation against it and to request for up-gradation. In the said case Supreme Court held that every entry in the annual confidential report must be communicated to the employee in order to enable him to make a representation against it and it may also give an opportunity to the employee to improve his performance. Para 17 and 18 of the judgment are relevant which reads as under: “17. In our opinion, every entry in the ACR of a public servant must be communicated to him within a reasonable period, whether it is a poor, fair, average, good or very good entry. This is because non-communication of such an entry may adversely affect the employee in two ways:(1) had the entry been communicated to him he would know about the assessment of his work and conduct by his superiors, which would enable him to improve his work in future; (2) he would have an opportunity of making a representation against the entry W.P.(C) No. 36570 of 2010-U 7 if he feels it is unjustified, and pray for its up-gradation. Hence, non-communication of an entry is arbitrary, and it has been held by the Constitution Bench decision of this Court in Maneka Gandhi v. Union of India that arbitrariness violates Article 14 of the Constitution. 18. Thus, it is not only when there is a benchmark but in all cases that an entry (whether it is poor, fair, average, good or very good) must be communicated to a public servant, otherwise there is violation of the principle of fairness, which is the soul of natural justice. Even an outstanding entry should be communicated since that would boost the morale of the employee and make him work harder”. 8. On the other hand, it is argued by the learned counsel for respondents 1 to 3 that the decision has been taken by the Promotion Committee as per the Scheme of Rating of the Confidential Report. It is further contended that since the selection is made on the basis of seniority, W.P.(C) No. 36570 of 2010-U 8 qualification and also work record, the rating given on the basis of Confidential Report is only one of the factors. That apart, when the procedure prescribed had been complied with, there was no necessity to consider Ext.P4 representation. 9. Having regard to the nature of contentions urged, the short question to be considered in this writ petition is whether the selection made by respondents 1 to 3 suffers from any infirmity in the light of the law laid down by the Supreme Court in DEV DUTT's case (supra. It is not in dispute that the petitioner or any other candidates were informed about their annual Confidential Reports or the nature of assessment made by the employer. The fact remains that all the candidates scored equal marks in respect of their seniority as well as qualification. The marks differed only when the rating was given on the basis of confidential records. Only on evaluation of the Confidential Records a lesser rating was given to the petitioner. Viewed in that angle, definitely non- 9 W.P.(C) No. 36570 of 2010-U communication of the ACR of the petitioner clearly amounts to an arbitrary action and in violation of principles of natural justice as held by the Supreme Court in DEV DUTT's case. As held by the Supreme Court, if the ACR of 2007 and 2008 were communicated to the petitioner he could have represented against such entries and he had an opportunity to avoid such entries against him. In fact, three of the candidates' ACR were outstanding for all the three years and in respect of two candidates namely petitioner and 4[th] respondent, they did not get the full marks on account of the less average marks obtained from ACR. 10. Once I have held that the non-communication of the ACR is bad in law, then the next question is in regard to reliefs that could be granted in this case. It is needless to state that the petitioner may get an opportunity only if the entries in his ACR's which are below outstanding is rectified by the respondents 1 to 3. As far as ACR's of respondents 5 to 7 are concerned, the same was W.P.(C) No. 36570 of 2010-U 10 outstanding in all the three years. In the DEV DUTT's case, Supreme Court granted an opportunity to the petitioner to submit a representation to the appointing authority to correct the entries in the ACR. Having regard to the fact that already the selection process had been completed, it is necessary in the interest justice that an opportunity is to be granted to the petitioner and the 4[th] respondent (if he is so advised) to submit necessary representation to represent against the “Above average” entry in the ACR's. Thereafter a fresh selection has to be conducted by the respondent authorities in accordance with the procedure prescribed. In the result, Ext.P3 is quashed and respondents 1 to 3 are directed to conduct fresh selection after giving intimation to all the candidates regarding the entries in the ACR's for the respective years under consideration. If any representation is submitted by any of the candidates, the same has to be considered in accordance with the procedure prescribed and intimated to the candidates and W.P.(C) No. 36570 of 2010-U 11 the entire process shall be completed within a period of 3 months. If any of the respondents are already promoted to the post of Senior Assistant, status quo shall be maintained till a final decision is taken in the matter. After the selection process, if the petitioner is selected, he shall be given promotion from the date on which other candidates were promoted with retrospective effect and with all monetary benefits, if any, given to other candidates. If respondents 4 to 7 looses their opportunity on account of such selection process, respondents 1 to 3 shall not be entitled to recover any amount actually paid to them during the above period. Sd/- ## **A.M.SHAFFIQUE, JUDGE** rka /true copy/