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Vmk Menon Vs. Scientific Advisor - Court Judgment

LegalCrystal Citation
SubjectService
CourtKarnataka High Court
Decided On
Case NumberW.P. No. 20007 of 1984
Judge
Reported inILR1985KAR2071
AppellantVmk Menon
RespondentScientific Advisor
Advocates:A.C. Rajasekhar, Adv.
DispositionPetition rejected
Excerpt:
.....column as a matter of record.; - confidential remarks - remarks of assessment of performance -- adverse remarks to be communicated -- if not, presumption arises that there are no adverse remarks and overlooking of promotion invalid.;the confidential remarks are the remarks made by the superior or reporting officer about the assessment he makes of the performance of the official concerned in the course of the relevant year. if those remarks, arc adverse, then the rules do require that they be communicated. the adverse and derogatory remarks must show the character and conduct of the petitioner in a bad light and it must affect his promotional chance.;such remarks must be communicated. the adverse and derogatory remarks are not communicated then this court must presume that there is no..........of bihar & others. i do not think that the said decision of the supreme court assists the petitioner. now, it is well settled that if adverse 2 remarks in the the confidential reports of the officer concerned is the foundation based for overlooking his claim for promotion, then such overlooking would be rendered invalid if it is demonstrated that the adverse remarks were never communicated to the officer. that is not the case here with annexure-h. it merely states that his annual confidential reports were perused to determine whether he was fit or not fit. it never states that the petitioner was overlooked for promotion because of adverse remarks in the annual confidential report.6. therefore, there is no merit in this petition. accordingly, it is rejected.
Judgment:
1. The petitioner is working as Office Superintendent Grade-11 in the Electronics and Radar Development Establishment, Ministry of Defence, Bangalore. He has held that post for the last 9 years. He has claimed that he was due for promotion, atleast for consideration for promotion, in August 1983. But he was not promoted even in 1984 though Respondents-4 to 23 were promoted in 1983 as per Annexure ,B. The petitioner has not been promoted to Grade-1 unjustly. contrary to the Rules and Guidelines issued in that behalf. He has therefore prayed for quashing of Annexure-B as well as Annexure - C, Annexure-C being the panel of promotions made for 1984. He has further prayed that a mandamus may issue to Respondents-1 to 4 to consider his case for promotion and direct them to promote the petitioner to Superintendent Grade-I with effect from August, 1983, when most of the Respondents-4 to 22 were promoted. It is clear from Annexure H produced by the petitioner himself that his case was considered by the Departmental Promotion Committee at its meeting held on 13th August, 1984. But, on the basis of his record of service as reflected in his annual confidential reports, the Committee did not recommend him for promotion to the Grade of Office Superintendent Grade-I. What is, therefore, clear is whatever may have been the position in 1983, the promotions made in 1983 cannot now be challenged in 1984 on the ground that in 1984 also, he has been overlooked, though considered.

2. It is now well settled that there is no legal right to claim promotion. But every employee has a right to be considered for promotion. As is apparent from the Annexure-H, the case of the petitioner has been considered. The Departmental Promotion Committee has found him not suit-able for recommendation to be promoted and this Court cannot substitute its opinion formed on the basis of the assertions made by the petitioner in this Court.

3. The Learned Counsel for the petitioner has strenuously contended that there was a Departmental Enquiry in regard to alleged misconduct, a little prior to August, 1983 and that enquiry resulted in, the petitioner being imposed with the minor penalty of censure. Therefore, he contends that it is that minor penalty imposed on him which is responsible for not being found suitable by the Departmental Promotion Committee both in 1983 and 1984. I do not think this re-fleets the correct position. He was censured only in the month of September, 1983 by which time, he had already been overlooked in August 1983 and he came to accept the same. It is only in 1984, when he has been informed as per Annexure-H, that he has approached this Court challenging the selection and promotions made both in 1983 and 1984. Censure is a penalty imposed after the Departmental Enquiry. That does not amount to making the confidential remark in the confidential reports. Probably the fact of censure is entered in a separate column as a matter of record. The confidential remarks are the remarks made by the Superior or reporting officer about the assessment he makes or the performance of the official concerned in the course of the relevant year. If those remarks are adverse, then the Rules do require that they be communicated. The adverse and derogatory remark must show the character and conduct of the petitioner in a bad light and it must affect his promo-ional chance. Such remarks must be communicated. The adverse and derogatory remarks are not communicated then his Court must presume that there is no adverse remark against him which can be considered by the Departmental Promotion Committee to find out whether a person is fit for promotion. Even the non-selection cadre depends upon the assessment made by the Promotional Committee as to whether he is fit or not fit. If the verdict of the Committee is that he was not fit, then he must be content with the situation. This Court cannot substitute its opinion for that of the Committee.

4. There is no evidence placed before this Court that the Departmental Promotion Committee took any other material into account than what was found in the confidential report of the petitioner. I, therefore, do not see that there is any statutory right of the petitioner affected in the matter of overlooking his claim for promotion to Grade-1.

5. However, I must point out that Learned Counsel has relied upon a recent decision of the Supreme Court in the case of Amar Kant Choudhary -v.- State of Bihar & others. I do not think that the said decision of the Supreme Court assists the petitioner. Now, it is well settled that if adverse 2 remarks in the the confidential reports of the officer concerned is the foundation based for overlooking his claim for promotion, then such overlooking would be rendered invalid if it is demonstrated that the adverse remarks were never communicated to the Officer. That is not the case here with Annexure-H. It merely states that his annual confidential reports were perused to determine whether he was fit or not fit. It never states that the petitioner was overlooked for promotion because of adverse remarks in the annual confidential report.

6. Therefore, there is no merit in this Petition. Accordingly, it is rejected.


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