Case Note & Summary
The petitioner, Manuel Lourenco D'Costa, was an employee of the Board of Trustees of the Port of Mormugao (respondent No.1). He was appointed as a Clerk in 1971 and subsequently promoted to various posts, including Assistant Wharf Superintendent in 2001 and Assistant Yard Superintendent in 2003. In 2001-2003, three vacancies arose for the post of Assistant Traffic Manager. The petitioner made a representation on 24th June 2003 requesting that the post not be filled for two months, but on 9th September 2003, respondent No.2 was promoted to the post. On 24th March 2006, respondent No.3 was also promoted. The petitioner challenged these promotion orders by way of a writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash the promotion orders and a writ of mandamus to promote him to the post of Assistant Traffic Manager with effect from 9th September 2003 or 24th March 2006. The petitioner contended that he was overlooked for promotion on the basis of adverse remarks which were never communicated to him. The respondents argued that the adverse remarks were considered and that the petitioner was not suitable for promotion. The court analyzed the legal position regarding uncommunicated adverse remarks and held that such remarks cannot be taken into consideration for denying promotion. The court found that the promotion orders were based on uncommunicated adverse remarks and therefore quashed them. The court directed respondent No.1 to reconsider the petitioner's case for promotion without taking into account the uncommunicated adverse remarks. The petition was allowed in part.
Headnote
A) Service Law - Promotion - Adverse Remarks - Uncommunicated Adverse Remarks - Constitution of India, 1950, Article 226 - Petitioner challenged promotion orders dated 9-9-2003 and 24-3-2006 promoting respondents 2 and 3 to the post of Assistant Traffic Manager, claiming he was overlooked due to uncommunicated adverse remarks - Court held that adverse remarks must be communicated to the employee before they can be taken into consideration for promotion - Held that promotion orders based on uncommunicated adverse remarks are liable to be quashed (Paras 1-10).
Issue of Consideration
Whether promotion of the petitioner to the post of Assistant Traffic Manager could be denied on the basis of adverse remarks which were not communicated to him.
Final Decision
The petition is allowed in part. The promotion orders dated 9-9-2003 and 24-3-2006 are quashed. Respondent No.1 is directed to reconsider the case of the petitioner for promotion to the post of Assistant Traffic Manager without taking into account the uncommunicated adverse remarks.
Law Points
- Adverse remarks must be communicated to employee before being considered in promotion
- Promotion cannot be denied based on uncommunicated adverse remarks
- Writ of certiorari lies against promotion orders based on uncommunicated adverse remarks
