2007 (5) TMI 598 - SC - Indian Laws

Whether Office Memorandum dated 10.10.2002 providing for the mode and manner for considering the suitability of candidates for promotion from one post to the other correct? Whether he DPC must take into consideration the merit and merit only?

Issues Involved:
1. Interpretation of the Office Memorandum dated 10.10.2002.
2. Consideration of Annual Confidential Reports (ACRs) for promotion.
3. Applicability of clarificatory Office Memorandum dated 13.09.2004.
4. Seniority and merit in promotion decisions.
5. Retrospective effect of clarificatory memoranda.

Issue-wise Detailed Analysis:

1. Interpretation of the Office Memorandum dated 10.10.2002:
The Supreme Court examined the interpretation of the Office Memorandum dated 10.10.2002, which laid down procedures for considering candidates for promotion. The relevant clauses emphasized that merit should be recognized and rewarded based on a rigorous selection process, and the evaluation of Confidential Rolls (CRs) should be fair, just, and non-discriminatory. Specifically, the DPC should assess suitability based on service records and ACRs for the five preceding years. The memorandum also provided that the latest ACRs should be considered if the DPC meets after September of the year.

2. Consideration of Annual Confidential Reports (ACRs) for Promotion:
The primary contention was whether the ACR for the year 2002-03 should be considered for promotion. The appellant argued that the latest ACR should be included, while the respondent contended that only ACRs up to 31.03.2001 should be considered, as per the clarificatory memorandum. The Supreme Court noted that the DPC must consider ACRs for five preceding years, which should mean the years for which ACRs have attained finality. The Court emphasized that the DPC should not be guided merely by overall grading but should assess based on entries in the CRs.

3. Applicability of Clarificatory Office Memorandum dated 13.09.2004:
The clarificatory Office Memorandum dated 13.09.2004 stated that if the DPC sits after September, ACRs up to the year ending 31.03.2001 should be considered for vacancies arising in 2001-02. The Division Bench of the High Court held that the ACR for the year ending 31.03.2003 should not have been considered, supporting its decision with a similar memorandum issued by the Government of India. The Supreme Court upheld this interpretation, noting that the clarification was consistent with the rules and the intent of the original Office Memorandum.

4. Seniority and Merit in Promotion Decisions:
The respondent was senior to the appellant by 16 years. The Supreme Court emphasized that while merit and suitability are primary considerations for promotion, seniority cannot be ignored. The Court highlighted that the DPC must follow the laid-down procedures to ensure a fair assessment. The Division Bench's decision to exclude the ACR for the year ending 31.03.2003 was consistent with the rules, ensuring that seniority and merit were both considered appropriately.

5. Retrospective Effect of Clarificatory Memoranda:
The Supreme Court held that the clarificatory memorandum issued by the State of Mizoram should have retrospective effect. The Court cited precedents stating that clarificatory or explanatory statutes are usually retrospective. The Court noted that the clarification was issued to ensure consistency with the original intent of the rules and to prevent any injustice that might arise from a different interpretation.

Conclusion:
The Supreme Court dismissed the appeals, upholding the Division Bench's decision that the ACR for the year ending 31.03.2003 should not be considered for the promotion. The Court emphasized the importance of following the laid-down procedures and the retrospective effect of clarificatory memoranda to ensure fair and just promotion decisions. The judgment reinforced the principle that both seniority and merit must be considered in promotion decisions, in line with the relevant rules and guidelines.

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