P.K. Vinu v. Marine Products Export Development Authority

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MRS. JUSTICE ANNIE JOHN TUESDAY, THE 6TH DAY OF FEBRUARY 2018 / 17TH MAGHA, 1939 **WA.No. 1142 of 2015 IN WPC. 22867/2013** AGAINST THE JUDGMENT IN WP(C) 22867/2013 of HIGH COURT OF KERALA ## **APPELLANT(S)/APPELLANT:** P.K. VINU, ACCOUNTS OFFICER, THE MARINE PRODUCTS EXPORT DEVELOPMENT AUTHORITY, PANAMPILLY AVENUE, KOCHI - 682 036, RESIDING AT KANDATHIL PARAMBIL, TRIPUNITHURA - 682 301. BY ADVS.SRI.P.N.SANTHOSH SMT.K.P.GEETHA MANI ## **RESPONDENT(S)/RESPONDENTS:** 1. THE MARINE PRODUCTS EXPORT DEVELOPMENT AUTHORITY, MPEDA HOUSE, PANAMPILLY AVENUE, P.B.NO.4272, KOCHI - 682 036, REPRESENTED BY ITS SECRETARY. 2. THE CHAIRMAN, THE MARINE PRODUCTS EXPORT DEVELOPMENT AUTHORITY, MPEDA HOUSE, PANAMPILLY AVENUE, P.B.NO.4272, KOCHI - 682 036. 3. G.RAJENDRAN, DEPUTY DIRECTOR (PERSONNEL), PERSONNEL SECTION, HEAD OFFICE, THE MARINE PRODUCTS EXPORT DEVELOPMENT AUTHORITY, MPEDA HOUSE, PANAMPILLY AVENUE, PB NO.4272, KOCHI - 682 036. 4. ADDITIONAL 4TH RESPONDENT THE COMMERCE SECRETARY, GOVERNMENT OF INDIA, MINISTRY OF COMMERCE & INDUSTRY, DEPARTMENT OF COMMERCE, UDYOG BHAVAN, NEW DELHI, PIN - 110011. R1,R2 BY ADV. SRI.O.V.RADHAKRISHNAN (SR.) R1,R2 BY ADV. SMT.K.RADHAMANI AMMA R1,R2 BY ADV. SRI.ANTONY MUKKATH R4 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL OF INDIA THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 06-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.R. ## K. SURENDRA MOHAN & ANNIE JOHN, JJ. - - - - - - - - - - - - - - - - - W.A.No. 1142 of 2015 - - - - - - - - - - - - - - - - - Dated this the 6[th] day of February, 2018 ## JUDGMENT ## Surendra Mohan, J. This is an appeal filed by the writ petitioner in W.P. (C) No. 22867 of 2013 against the judgment dated 20.3.2015 of the learned Single Judge. The writ petition was filed by the appellant challenging Ext.P8 order of the first respondent promoting the third respondent to the post of Deputy Director (Personnel). 2. The appellant entered service as a Junior Stenographer in 1987. He was promoted as Accountant on 7.7.1992 as per Ext.P1. Later on, he was promoted as Senior Accountant on 11.2.2004 and as Accounts Officer on 9.4.2009. The third respondent is also a person who was similarly promoted as Accounts Officer. While so, the post of W.A.1142/2015 2 Deputy Director (personnel) fell vacant on 31.5.2011. 3. At the time when the vacancy arose, neither the appellant nor the third respondent were qualified for being considered for promotion to the said post. This is for the reason that, four years service as Accounts Officer was the eligibility criterion for being considered for such promotion. The appellant completed four years on 9.4.2013, while the third respondent completed the period of four years on 5.8.2013. A Departmental Promotion Committee (DPC) was convened on 5.8.2013. The DPC considered both the appellant and the third respondent for promotion and promoted the third respondent by issuing Ext.P8 order. The third respondent joined duty on the same day. It was challenging Ext.P8 that, the appellant had approached this Court. 4. It was contended before the learned Single Judge that the reason for preferring the third respondent over the appellant, though he was the senior person, was that, for the W.A.1142/2015 3 years 2011-2012 and 2012-2013, the assessment in his Annual Performance Appraisal Report (APAR) was 'average'. In the case of the third respondent, the APAR showed a consistent 'very good' for four years and 'good' for one year. The complaint of the appellant was that, though his APAR showed an assessment 'good' for the previous years, the adverse entry of 'average' in the subsequent years had not been communicated to him as required by law. It was contended that, the action of the DPC in denying to him the promotion by relying on APARs that were not communicated to him, violated his fundamental right under Article 14 of the Constitution. 5. The writ petition was contested by respondents 1 and 2 by filing a detailed counter affidavit. The third respondent did not contest the writ petition. According to the counter affidavit, the APAR assessments in respect of the incumbents for the five years immediately preceding the year 2013 had to be considered. The third respondent had been W.A.1142/2015 4 preferred for the reason that, his APAR showed a better performance when compared to the appellant. Though an objection had been raised by the appellant pointing out that the convening of the DPC on the very day on which the third respondent acquired the eligibility criteria, his selection, appointment as well as joining duty on the same day showed an intent to select him, it was contended by respondents 1 and 2 that there was no such intention. According to them, the proceedings had been pursued expeditiously for the reason that, the vacancy had been remaining unfilled from 2011 onwards. 6. The learned Single Judge considered the respective contentions, referred to the decisions on the point and held that, since the adverse entries had been communicated to the appellant after the selection was conducted, and since he had preferred an appeal against the adverse entries, it was enough that his claim was considered only if he succeeds in the appeal. Therefore, the writ petition W.A.1142/2015 5 was disposed of directing the appellate authority to consider and dispose of the appeal within a period of two months. 7. According to Adv. P.N. Santhosh who appears for the appellant, it is clear from the facts of this case that the adverse entries were not communicated to the appellant, at any time before the DPC was convened. Relying on the decisions of the Apex Court in Dev Dutt v. Union of India ((2008) 8 SCC 725), Abhijit Ghosh Dastidar v. Union of India (2009) 16 SCC 146) and Sukhdev Singh v. Union of India ((2013) 9 SCC 573), it is contended that the selection conducted placing reliance on the adverse entries was violative of Article 14 of the Constitution and liable to be set aside. According to the learned counsel, the question as to whether the appellant would succeed in the appeal that he has preferred, is not a relevant consideration for the reason that the infirmity that has tainted the selection cannot be removed, whatever be the fate of the appeal that is pending. It is pointed out that, though the appeal had been rejected earlier W.A.1142/2015 6 by a considered order in compliance with the direction of the learned Single Judge, since the order was passed without hearing the appellant, this Court has granted another opportunity to the authority to pass a fresh order. Even to this date, no fresh order has been passed. Therefore, the learned counsel seeks interference with the judgment appealed against. 8. Per contra, the learned Senior Counsel Sri. O.V. Radhakrishnan points out that, though the omission to communicate the adverse entries to the appellant cannot be dismissed lightly, the fact remains that the same was communicated immediately after the selection was over. The incumbent has also challenged the said entries in appeal, which is pending. It is contended that, there is no justification for interfering with the selection conducted as per Ext.P8 at this stage for the reason that, if the appellant does not succeed in his appeal, injustice would be caused to the third respondent. It was considering the said aspect that the W.A.1142/2015 7 learned Single Judge had refrained from quashing Ext.P8, it is pointed out. The learned Senior Counsel therefore contends that there are no grounds to interfere with the judgment appealed against. 9. Heard. The facts in this case are not in dispute. It is not in dispute that the adverse entries in the APAR of the appellant had not been communicated to him before the selection conducted on 5.8.2013. Therefore, the only question that requires to be considered is whether the omission to communicate the adverse entries would vitiate the selection that was conducted. It is worth noticing at this stage that, though there was some difference of opinion on the above point, among the decisions of the Apex Court, the position has been cleared by the decision of a Three Judge Bench in Sukhdev Singh v. Union of India (supra). The Bench considered the two previous decisions, took note of the conflict of judicial opinion and has laid down the law on the point in paragraphs 8 and 9 of the said decision in the W.A.1142/2015 8 ## following words: “8. In our opinion, the view taken in Dev Dutt that every entry in ACR of a public servant must be communicated to him/her within a reasonable period is legally sound and helps in achieving threefold objectives. First, the communication of every entry in the ACR to a public servant helps him/her to work harder and achieve more that helps him in improving his work and give better results. Second and equally important, on being made aware of the entry in the ACR, the public servant may feel dissatisfied with the same. Communication of the entry enables him/her to make representation for upgradation of the remarks entered in the ACR. Third, communication of every entry in the ACR brings transparency in recording the remarks relating to a public servant and the system becomes more conforming to the principles of natural justice. We, accordingly, hold that every entry in ACR - poor, fair, average, good or very good - must be communicated to him/her within a reasonable period. 9. The decisions of this Court in Satya Narain Shukla v. Union of India and K.M. Mishra v. Central Bank of India and the other decisions of this Court taking a contrary view are declared to be not laying down good law.” Accordingly, the decisions that took contrary views have also W.A.1142/2015 9 been set aside. 10. In view of the above authoritative pronouncement, it has to be held that the procedure adopted in convening the DPC on 5.8.2013 without communicating the adverse entries to the appellant cannot be sustained. Consequently, the selection that has culminated in Ext.P8 order promoting the third respondent also is unsustainable. Though it is contended that the question of conducting a fresh selection would arise only after the appellant succeeds in his appeal, we find no substance in the said contention. By proceeding with the selection process without communicating the adverse entries to the appellant, the authorities have denied to him a chance to be considered for selection to the post of Deputy Director (Personnel), though he was otherwise qualified for being considered. The selection therefore is tainted. For the above reason, it is only appropriate that a fresh selection is conducted after the appeal preferred by the appellant is disposed of. W.A.1142/2015 10 In the result, this appeal is allowed, the judgment of the learned Single Judge is set aside, and the writ petition is allowed quashing Ext.P8. It is made clear that the third and fourth respondents shall be at liberty to conduct a fresh selection in accordance with law. Sd/JUDGE K. SURENDRA MOHAN Sd/ANNIE JOHN JUDGE sb