Seema Sharma vs The State Of Madhya Pradesh on 20 January, 2020

[Cites 12, Cited by 6]

Madhya Pradesh High Court

Seema Sharma vs The State Of Madhya Pradesh on 20 January, 2020

Bench: Sheel Nagu

                                    1
             THE HIGH COURT OF MADHYA PRADESH
                           WA.471.2019
                (Seema Sharma Vs. State of M.P. & Ors)

Gwalior, Dated 20.01.2020

      Shri D.K. Katare and Shri Alok Katare, learned counsel

for the appellant.

      Shri Ankur Mody, learned Additional Advocate General,

for respondent/State.

1. The instant intra-court appeal filed u/S 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005, assails the final order dated 31.01.2019 passed by the learned Single Judge in WP.7769/2014 while exercising writ and in the alternative supervisory jurisdiction u/A.226/227 of the Constitution dismissing the petition in question by which following two reliefs were prayed:

"7. Relief prayed for:

That by way of the present petition the petitioner prays that the impugned order dated 4/12/14 (Annexure P/1), be quashed & the Grading awarded to the petitioner, by the Reporting & Reviewing Officer for the year 2010-11 be upheld, & the award of Grade "B" by the Accepting Authority for the said year being in contravention to the Dev Dutt's Case reported in AIR 2008 SC 2515, be declared to be illegal.

THE HIGH COURT OF MADHYA PRADESH WA.471.2019 (Seema Sharma Vs. State of M.P. & Ors) Review D.P.C. be convened, and the candidature of the petitioner be directed to be considered, and the petitioner be promoted to the next higher post of Joint Director, granting the same benefits as have been granted to the similarly situated employees, in pursuance to the D.P.C. held in 2008."

2. Learned counsel for the rival parties are heard on the question of admission.

3. Petitioner had primarily raised two grievances which were initially projected to be interconnected but as the facts, contentions and legal propositions were thrashed out before the learned Single Judge it got revealed that issue of supersession or non-promotion to the post of Joint Director, Woman & Child Development qua Departmental Promotion Committee (DPC) dated 07.12.2012 was distinct and independent of the other issue of down-gradation by the Accepting Authority from "Outstanding" to "Good" in the ACR pertaining to the appraisal year 2010-11.

4. Learned Single Judge found that even if the contention of the petitioner/appellant that she deserves an outstanding grading in the ACR of year ending March, 2011 is found to be correct, the petitioner cannot succeed in respect of her plea of 3 THE HIGH COURT OF MADHYA PRADESH WA.471.2019 (Seema Sharma Vs. State of M.P. & Ors) promotion since there were three other officers senior to the petitioner/appellant who had been awarded maximum marks of 20 in overall assessment conducted by DPC dated 07.12.2012 while the vacancies available to be filled up by promotion in the cadre of Joint Director were only three.

5. After hearing learned counsel for the appellant, this Court sees no reason to take a different view than the one taken by the learned Single Judge in respect of grievance of supersession.

6. Coming to the other grievance of down-gradation in the ACR of 2010-11, the records reveal that Reporting and as well as the Reviewing Authority awarded "Outstanding" grading. However, the Accepting Authority differed with the view of the said two authorities and awarded "Good", which was below the benchmark of "Very Good" required for promotion to the post of Joint Director.

6.1 In the background of aforesaid factual matrix, learned counsel for the appellant has contended with great vehemence that the remarks of Accepting Authority amounts to down- gradation and since the same was done without affording any opportunity of being heard the same is vitiated in law. The 4 THE HIGH COURT OF MADHYA PRADESH WA.471.2019 (Seema Sharma Vs. State of M.P. & Ors) decisions of Apex Court in the case of "Dev Dutt Vs. Union of India and others [(2008) 8 SCC 725]", "Sukhdev Singh Vs. Union of India and others [(2013) 9 SCC 566]", "Prabhu Dayal Khandelwal Vs. Chairman, U.P.S.C. & Ors. [AIR 2015 SCW 4417] para 7, 8 and 9" and "Rajendra Kumar Verma Vs. State of M.P. and another [2017(1) M.P.L.J. 391] para 12, 16 and 17" are pressed into service in support of the aforesaid proposition regarding down-gradation. 6.2 Further decision of the Apex Court in the case of "Harigovind Yadav Vs. Rewa Sidhi Gramin Bank and others [(2006) 6 SCC 145]" is also relied upon to contend that while exercising the power of judicial review u/A.226 of the Constitution, this Court can very well issue a writ of mandamus directing the Executive Authority to do what it failed to do.

7. Pertinently, this is second round of litigation by the petitioner after exhausting the first in shape of WP.3675/2009 which was disposed of with direction to consider representation of petitioner by order dated 20.10.2010, whereafter the official respondents considered the representation and rejected the same by passing order dated 5 THE HIGH COURT OF MADHYA PRADESH WA.471.2019 (Seema Sharma Vs. State of M.P. & Ors) 04.12.2014 which came to be unsuccessfully assailed in the petition in question.

8. Learned Single Judge while dealing with the aspect of down-gradation from para 12 onwards in the impugned order relied upon the executive instructions issued by the General Administration Department, Government of Madhya Pradesh dated 06.09.1994 which have though been reproduced in the impugned order but are being reproduced again for ready reference and convenience:

^^fo"k;& xksiuh; izfrosnu esa vafdr izfrdwy Vhdk fu"izHkkoh gksus ds laca/k esaA 'kkldh; lsodksa dh xksiuh; pfj=koyh ds lEcU/k esa fofHkUu foHkkxksa }kjk ;g i`PNk dh xbZ gS fd 'kkldh; lsodksa dh xksiuh; pfj=koyh esa tgka izfrosnu vf/kdkjh ¼Reporting Authority½ } kjk vafdr dh xbZ Vhdk izfrdwy Lo:i dh gks fdUrq leh{kkdrkZ vf/kdkjh ¼Reviewing Authority½ ,oa Lohd`rdrkZ vf/kdkjh ¼Accepting Authority½ us Li"V :i ls vlgefr vafdr dh gks ] rks ,slh fLFkfr esa D;k izfrosnd vf/kdkjh ¼Reporting Authority½ }kjk nh xbZ fVIIk.kh dks izfrdwy fVIi.kh ds :i esa lalwfpr fd;k tkuk pkfg, ;k ml fVIi.kh dks fu"izHkkoh ekudj dk;Zokgh dh tkuh pkfg,A 2- mijksDr iz'u ds lECkU/k esa Hkkjr ljdkj ds dk-Kkla[;k 52@5@72& LFkkiuk ¼d½] fnukad 20&05&1972 esa ;g O;oLFkk gS fd ;fn fdlh vf/kdkjh ds xksiuh; izfrosnu esa izfrosnd vf/kdkjh }kjk dh xbZ izfrdwy fVIif.k;ksa ds ckjs esa 6 THE HIGH COURT OF MADHYA PRADESH WA.471.2019 (Seema Sharma Vs. State of M.P. & Ors) iqujh{kd@Lohd`rdrkZ vf/kdkjh esa ls dksbZ vlger gS rks mPp vf/kdkjh dk er lgh ewY;kadu ekuk tk;sxkA 3- lkekU; iqLrd ifji= Hkkx 1&7 esa xksiuh; pfj=koyh esa vafdr izfrdwy Vhdk ds Lor% fu"izHkkoh gksus ds lEca/k esa dksbZ Li"V funsZ'k u gksus ls Hkkjr 'kklu ds izko/kku vuqlkj ijh{k.k mijkUr jkT; 'kklu us bl lEca/k esa ;g fu.kZ; fy;k gS fd ;fn fdlh vf/kdkjh ds xksiuh; izfrosnu esa izfrosnd vf/kdkjh (Reporting Authority) }kjk izfrdwy Vhdk vafdr dh xbZ gS vkSj ;fn ml nh xbZ izfrdwy Vhdk ls iqujh{kd ,oa Lohd`rdrkZ vf/kdkjh esa ls dksbZ viuh vlgefr O;Dr djrk gks rks ,slh fLFkfr esa mPp vf/kdkjh iqujh{kd ,oa Lohd`rdrkZ vf/kdkjh ds er dks gh lgh ekuk tkdj ewY;kadu fd;k tk;sA d`i;k Hkfo"; esa rnuqlkj dk;Zokgh dh tkuk lqfuf'pr dh tk;sA^^ 8.1 Learned Single Judge while relying upon the aforesaid instructions dated 06.09.1994 declined to accept the contention of petitioner that the gradation awarded by the Accepting Authority amounts to down-gradation. Learned Single Judge held that the process of writing of ACR cannot be compartmentalized and therefore gets completed only after all the three authorities [Reporting, Reviewing and Accepting Authority] pen their remarks. It was further held that the chain/process of writing ACR of a particular year gets completed after all the said three authorities have made their 7 THE HIGH COURT OF MADHYA PRADESH WA.471.2019 (Seema Sharma Vs. State of M.P. & Ors) remarks/gradations and therefore if one of these three authorities awards gradation which is comparatively lower than the gradation awarded by the previous lower authority then that would not tantamount to down-gradation. It was, thus, held that the final remark of Accepting Authority would become the gradation of that particular year. In other words, learned Single Judge found that the remarks of the Reporting Authority merge into the remarks of the Reviewing Authority and the remarks of Reviewing Authority merge into the remarks of Accepting Authority which then mature into final remarks/gradation in ACR. The question of down-gradation, it was held, does not arise as the individual remarks of the first two authorities alone cannot be picked-up to be considered.

9. Before proceeding ahead, it would be appropriate to reproduce the relevant extract of the judgments of the Apex Court on the issue of writing, communicating and consideration of ACRs as follows:

9.1 In "Dev Dutt Vs. Union of India and Others [(2008) 8 SCC 725]", it is held:

"18. Thus, it is not only when there is a benchmark but in all cases that an entry (whether it is poor, fair, 8 THE HIGH COURT OF MADHYA PRADESH WA.471.2019 (Seema Sharma Vs. State of M.P. & Ors) 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.

19. Learned counsel for the respondent has relied on the decision of this Court in U.P. Jal Nigam v. Prabhat Chandra Jain (1996) 2 SCC 363. We have perused the said decision, which is cryptic and does not go into details. Moreover it has not noticed the Constitution Bench decision of this Court in Maneka Gandhi v. Union of India (1978) 1 SCC 248 which has held that all State action must be non-arbitrary, otherwise Article 14 of the Constitution will be violated. In our opinion the decision in U.P. Jal Nigam U.P. Jal Nigam v. Prabhat Chandra Jain (1996) 2 SCC 363 cannot be said to have laid down any legal principle that entries need not be communicated. As observed in Bharat Petroleum Corpn. Ltd. v. N.R. Vairamani AIR 2004 SC 4778 (vide AIR para 9): (SCC p.584) "9. ...Observations of Courts are neither to be read as Euclid's Theorems nor as provisions of the statute and that too taken out of their context".

20. In U.P. Jal Nigam v. Prabhat Chandra Jain (1996) 2 SCC 363 there is only a stray observation "if the graded entry is of going a step down, like falling from 'very good' to 'good' that may not ordinarily be an adverse entry since both are a positive grading". There is no discussion about the question whether such "good" grading can also have serious adverse consequences as it may virtually eliminate the chances of promotion of the incumbent if there is a benchmark requiring "very good" entry. And even when there is no benchmark, such downgrading can have serious adverse effect on an incumbent's chances of promotion where comparative merit of several candidates is considered."

THE HIGH COURT OF MADHYA PRADESH WA.471.2019 (Seema Sharma Vs. State of M.P. & Ors) 9.2 In "Sukhdev Singh Vs. Union of India and others [(2013) 9 SCC 566]", it is held:

"8. In our opinion, the view taken in Dev Dutt Vs. Union of India and others [(2008) 8 SCC 725] 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."

10. From the aforesaid proposition of law laid down by the Apex Court what comes out loud and clear is that every remark whether adverse or not is required to be communicated to the officer reported upon to enable him to improve upon his past conduct, performance and behaviour with the ultimate object of empowering the officer reported upon to contribute to the betterment of the Institution/Society/Nation. It can be further deduced from the aforesaid decisions that no material/remark in 10 THE HIGH COURT OF MADHYA PRADESH WA.471.2019 (Seema Sharma Vs. State of M.P. & Ors) the ACR having an adverse impact (even if not per se adverse) can be used against the concerned officer/employee without first communicating the same to him/her and considering his/her representation against the same. 10.1 Whereas, as regards down-gradation, the view of the Supreme Court in Dev Dutt (supra) appears to be thus:

"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.

19. Learned counsel for the respondent has relied on the decision of this Court in U.P. Jal Nigam v. Prabhat Chandra Jain (1996) 2 SCC 363. We have perused the said decision, which is cryptic and does not go into details. Moreover it has not noticed the Constitution Bench decision of this Court in Maneka Gandhi v. Union of India (1978) 1 SCC 248 which has held that all State action must be non-arbitrary, otherwise Article 14 of the Constitution will be violated. In our opinion the decision in U.P. Jal Nigam U.P. Jal Nigam v. Prabhat Chandra Jain (1996) 2 SCC 363 cannot be said to have laid down any legal principle that entries need not be communicated. As observed in Bharat Petroleum Corpn. Ltd. v. N.R. Vairamani AIR 2004 SC 4778 (vide AIR para 9): (SCC p.584) "9. ...Observations of Courts are neither to be read as Euclid's Theorems nor as provisions of the statute and that too taken out of their 11 THE HIGH COURT OF MADHYA PRADESH WA.471.2019 (Seema Sharma Vs. State of M.P. & Ors) context".

11. When the factual matrix attending herein is tested on the aforesaid law laid down, it is revealed that when the Accepting Authority awarded the grade of "Good" after differing with the higher grading of "Outstanding" awarded by the reporting and reviewing authorities, the result was that the petitioner/appellant suffered disadvantage in her right to be considered for promotion to the post of Joint Director for which the minimum benchmark of "Very Good" was prescribed by the DPC. However, since there were already three senior officers above the petitioner in the zone of consideration enjoying the grading of outstanding, the adverse effect which the grading "Good" had upon the petitioner was of no avail. Even if the 12 THE HIGH COURT OF MADHYA PRADESH WA.471.2019 (Seema Sharma Vs. State of M.P. & Ors) petitioner was awarded "Outstanding" by the Accepting Authority, she would not have been promoted as there were only three vacancies which were occupied by promotion of three officers in the zone of consideration who were senior to the petitioner. Thus, going into the legality and validity of award of grading "Good" by the Accepting Authority qua the grievance of supersession of the petitioner to the post of Joint Director is an academic exercise which deserves to be avoided.

12. However, one cannot lose sight of the fact that the grading of "Good" awarded by the Accepting Authority in the ACR 2010-11 would continue to have an adverse/disadvantageous effect upon the promotional prospects of petitioner as and when the impugned remarks of 2010-11 are considered by any DPC held after December, 2012. Accordingly, need arises to go into the aspect of legality and validity of the grading of "Good" awarded by the Accepting Authority in the ACR for year ending March 2011. 12.1 Learned Single Judge has solely relied upon the executive instructions dated 06.09.1994 [reproduced supra], close scrutiny of which reveals that it dealt with a case where 13 THE HIGH COURT OF MADHYA PRADESH WA.471.2019 (Seema Sharma Vs. State of M.P. & Ors) the Reviewing/Accepting Authority tends to differ with the adverse remarks awarded by the Reporting Authority. The question raised therein was that in this situation the adverse remark of the Reporting Authority should be treated as non- existent or should be communicated to the officer reported upon. The decision taken by the Government was that the view of the higher authority i.e. Reviewing/Accepting, as the case may, be should be treated as final and correct. 12.2 From the above analysis of the said instructions, it is clear that it pertains to a case where an adverse remark has been made by the Reporting Authority which is differed by the Reviewing/Accepting Authority. Meaning thereby that the higher authority (Reviewing/Accepting) decides to award a positive/better grading than the grading awarded by Reporting Authority. Thus, these instructions deal with a situation where the grading initially awarded is improved upon by the Reviewing/Accepting Authority and not the other way round. In other words, these instructions do not deal with a situation where difference of opinion by the Reviewing/Accepting Authority is to the disadvantage of the officer reported upon (as 14 THE HIGH COURT OF MADHYA PRADESH WA.471.2019 (Seema Sharma Vs. State of M.P. & Ors) is the case herein).

12.3 Reverting to the facts of the present case and viewing them in the context of above discussion, it is vivid that the instant case is not covered by the said instructions dated 06.09.1994. The fundamental and substantial difference is that the instructions deal with a case where decision in favour of the officer reported upon is being taken by the Reviewing/Accepting Authority while differing with the adverse remarks of the Reporting Authority. Once a decision in favour of employee is being taken by the higher authority whose opinion as per the State Government is final and binding then there is no question of any adverse effect upon the officer reported upon thereby eliminating the requirement of following of principle of natural justice of Audi Alteram Partem. Thus, the executive instructions dated 06.09.1994 are of no avail to the instant case and have thus been wrongly relied by the learned Single Judge.

12.4 However, the remarks of the Accepting Authority in the instant case are though positive [Good] but earn two marks less than gradation of "Outstanding" awarded by the Reporting 15 THE HIGH COURT OF MADHYA PRADESH WA.471.2019 (Seema Sharma Vs. State of M.P. & Ors) Authority as per the criteria followed by DPC in question which was as follows:

Grading Marks Outstanding 4 Very Good 3 Good 2 Average 1 12.5 It is undisputed that for promotion to the post of Joint Director or any other higher post the criteria of merit-cum- seniority is applied where loss of even one mark during overall assessment can mar the promotional prospects of an officer. 12.6 While differing with the grading of "Outstanding" awarded by the Reporting Authority, the Accepting Authority awarded grading "Good" thereby making the petitioner loose two marks in the overall grading/assessment for all future promotions in which ACR of 2010-11 would be taken into consideration.

12.7 In view of above, the petitioner ought to have been awarded a reasonable opportunity of being heard before the lower grading of "Good" awarded by Accepting Authority was taken into consideration or acted upon by DPC dated 07.12.2012.

THE HIGH COURT OF MADHYA PRADESH WA.471.2019 (Seema Sharma Vs. State of M.P. & Ors)

13. At this juncture, this Court is conscious of the fact that pursuant to the order dated 20.10.2010 passed in WP.3675/2009 in the earlier round of litigation, the official respondents have considered the representation of petitioner and rejected the same by passing the order which was challenged in the writ petition in question. Thus, for all practical purposes, the petitioner has been afforded opportunity of being heard.

14. However, the aforesaid hearing was a post-decisional hearing. In the considered opinion of this Court, in view of the decision of Apex Court in "K.I. Shephard & Ors. Vs. Union of India & Ors. [(1987) 4 SCC 431]" the said post-decisional hearing is an exercise in futility which cannot be termed as real, substantial and fair. Relevant para 16 of K.I. Shephard & Ors. (supra) is reproduced below:

"16. We may now point out that the learned Single Judge of the Kerala High Court had proposed a post- amalgamation hearing to meet the situation but that has been vacated by the Division Bench. For the reasons we have indicated, there is no justification to think of a post-decisional hearing. On the other hand the normal rule should apply. It was also contended on behalf of the respondents that the excluded employees could now represent and their cases could be examined. We do not think that would meet the ends of justice. They have already been thrown out of employment and having been deprived of livelihood 17 THE HIGH COURT OF MADHYA PRADESH WA.471.2019 (Seema Sharma Vs. State of M.P. & Ors) they must be facing serious difficulties. There is no justification to throw them out of employment and then give them an opportunity of representation when the requirement is that they should have the opportunity referred to above as a condition precedent to action. It is common experience that once a decision has been taken, there is a tendency to uphold it and a representation may not really yield any fruitful purpose."

14.1 Relevant provision of Rule 4(2) and Rule 7(8) of M.P. Public Services (Promotion) Rules, 2002, are reproduced below:-

"4. Determination of basis of promotion. -

(1) XX XX XX (2) Promotion from class I to higher pay scale of class I posts shall be made on the basis of "merit-cum-

seniority".

7. Promotion on the basis of merit-cum-

seniority. -

      (1)   XX    XX     XX
      (2)   XX    XX     XX
      (3)   XX    XX     XX
      (4)   XX    XX     XX
      (5)   XX    XX     XX
      (6)   XX    XX     XX
      (7)   XX    XX     XX

(8) For the eligibility for promotion from class I to higher pay scale of class I posts, the benchmark grade shall be "Very Good."

14.2 Whenever a particular benchmark is prescribed especially 18 THE HIGH COURT OF MADHYA PRADESH WA.471.2019 (Seema Sharma Vs. State of M.P. & Ors) when it is by way of a statutory provision as is the case herein and any officer concerned who is in the feeder cadre is awarded grading by Reporting/Reviewing/Accepting Authority in any particular appraisal year which is lower than the benchmark then on the anvil of fair play, good conscience and reasonableness it becomes incumbent upon the employer to communicate the said remark even if the same is positive in nature, before such remark is taken into consideration by any DPC. While taking this view, this Court is bolstered by the decision of Apex Court in the case of "Abhijit Ghosh Dastidar Vs. Union of India and others [(2009) 16 SCC 146]" para 8 of which is reproduced below for ready reference and convenience:

"8. Coming to the second aspect, that though the benchmark "very good" is required for being considered for promotion, admittedly the entry of "good" was not communicated to the appellant. The entry of "good" should have been communicated to him as he was having "very good" in the previous year. In those circumstances, in our opinion, non- communication of entries in the annual confidential report of a public servant whether he is in civil, judicial, police or any other service (other than the armed forces), it has civil consequences because it may affect his chances for promotion or getting other benefits. Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the 19 THE HIGH COURT OF MADHYA PRADESH WA.471.2019 (Seema Sharma Vs. State of M.P. & Ors) Constitution. The same view has been reiterated in the abovereferred decision [Dev Dutt v. Union of India (2008) 8 SCC 725, SCC p.738, para 41] relied on by the appellant. Therefore, the entries "good" if at all granted to the appellant, the same should not have been taken into consideration for being considered for promotion to the higher grade. The respondent has no case that the appellant had ever been informed of the nature of the grading given to him."

15. Before parting, it would be appropriate not to be oblivious of the time tested principle of service jurisprudence that a civil post holder has a right to be considered for promotion but has no right to promotion. The concept of right to be considered for promotion stems out of Art.16 of the Constitution which is a specie Art.14 of the Constitution which strikes at any kind of discrimination, arbitrariness or any action of the executive which is abhorrent to fair play, equity and good conscious which includes within its sweep the principle of natural justice of Audi Alteram Partem. No decision entailing adverse civil consequences should be taken without first affording reasonable opportunity of being heard to the person likely to be adversely impacted by the decision. 15.1 Testing the factual matrix in this case on the anvil of the aforesaid discussion, it is revealed that grading of "Good" 20

THE HIGH COURT OF MADHYA PRADESH WA.471.2019 (Seema Sharma Vs. State of M.P. & Ors) renders the petitioner comparatively less meritorious than the other competing candidates in the zone of consideration before any DPC, thereby causing prejudice. Occasions may arise where based upon seniority position of the petitioner in the zone of consideration in any DPC she might be ousted from being promoted solely due to securing two less marks [the difference between Outstanding and Good], thereby jeopardizing her promotional prospects. Thus, it cannot be denied that award of marks less by two can cause prejudice to the right of petitioner to be considered for promotion in accordance with law.

16. The expression "Right to be considered for promotion"

inheres the right to be considered in accordance with law. If the petitioner was afforded an opportunity of making representation and explaining her case as to why she deserves "Outstanding"

instead of "Good" grading, the possibility cannot be ruled out that the said representation may have found favour with the Competent Authority thereby restoring the "Outstanding" grading in 2010-11 ACR. Thus, denial of opportunity of being heard prior to taking into consideration the grading of "Good" 21

THE HIGH COURT OF MADHYA PRADESH WA.471.2019 (Seema Sharma Vs. State of M.P. & Ors) resulted in prejudice to the petitioner in all DPCs, held after 07.12.2012, which may have taken into account the aforesaid ACR of 2010-11 to the disadvantage of petitioner.

17. In view of above, non-grant of opportunity of being heard by making a representation against the grading of "Good" before it was considered against the petitioner, in the ACR of 2010-11 renders the said grading of "Good" vitiated in law.

18. Consequently, this Writ Appeal stands disposed of in the following terms:

"(i) Impugned order dated 31.01.2019 passed by learned Single Judge in WP.7769/2014 so far as it pertains to upholding the supersession of the petitioner to the post of Joint Director, Woman and Child Development is upheld.

(ii) So far as the finding and conclusion rendered by the learned Single Judge in the impugned order relating to down-gradation of the ACR for 2010-11 is set aside.

(iii) The impugned order dated 04.12.2014 (Annexure P-1) passed by respondent No.1 for being 22 THE HIGH COURT OF MADHYA PRADESH WA.471.2019 (Seema Sharma Vs. State of M.P. & Ors) post-decisional hearing is set aside.

(iv) The respondents are directed to communicate the "Good" grading awarded by the Accepting Authority including the "Outstanding" grading awarded by the Reporting and Reviewing Authority qua the ACR of 2010-11 to the petitioner within a period of one month from the date of receipt of certified copy of this order.

(v) Petitioner, on receipt of this communication, shall make a fresh representation to the Competent Authority within a further period of one month.

(vi) If the aforesaid representation is made within the time prescribed, the same shall be considered and decided by the Competent Authority within a further period of 30 days."

19. It is needless to emphasize that in case "Outstanding" Grading for year 2010-11 is restored, the petitioner shall be reconsidered for promotion to the post of Joint Director or any other subsequent higher post to which her juniors may have been promoted by holding review DPC as and when the 2010- 23 THE HIGH COURT OF MADHYA PRADESH WA.471.2019 (Seema Sharma Vs. State of M.P. & Ors) 11 grading of "Good" may have adversely prejudiced the petitioner except the DPC dated 07-12-2012. This exercise be completed within 60 days thereafter.

No cost.




                   (Sheel Nagu)              (Rajeev Kumar Shrivastava)
                      Judge                           Judge
      pd            20/01/2020                     20/01/2020

PAWAN
DHARKAR
2020.01.21
18:24:53
+05'30'

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