Madhya Pradesh High Court
Ram Niwas Awasthy vs The State Of Madhya Pradesh Judgement ... on 11 September, 2013
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT
JABALPUR.
Writ Petition No.15164/2007
Ram Niwas Awasthy
-Versus-
State of M.P. and others.
PRESENT : Hon'ble Shri Justice K.K. Trivedi.
Shri R.K. Verma, learned counsel for the petitioner.
Shri Rajesh Kumar Tiwari, Govt. Advocate for
respondents .
ORDER
(11.9.2013) 1: By this petition under Article 226 of the Constitution of India, the petitioner has called in question the order dated 11.12.1998 as also the order dated 16.7.2007, by which it is communicated that after considering the case of petitioner by holding a review Departmental Promotion Committee (hereinafter referred to as the DPC for brevity), he has not been found fit for promotion on the post of Assistant Grade-I with retrospective effect. It is contended that in fact this is a third round of litigation as the petitioner has filed an Original Application No.3315/1994 before the M.P. Administrative Tribunal challenging his illegal supersession in the matter of promotion, which petition came on transfer to this Court after closure of the Tribunal and was registered as Writ Petition No.9239/2003. On 31.8.2006, the said petition came up for hearing when the fact was found that bald statements were made by the respondents in their return that the case of the petitioner was considered for grant of promotion on the post of Assistant Grade-I in the year 1983, 1986, 1988 and 1989. However, no DPC records were made available to show that proper consideration of the petitioner was done in the matter of such promotion and, therefore, ultimately this Court directed that a review DPC be held, following in the same norms which were prescribed by the DPC of the year 1986 and to consider the case of the petitioner. Since the order passed by this Court was not complied with within the period prescribed in the order, a Contempt Petition was filed by the petitioner before this Court being Contempt Case No.80/2007. In the said Contempt Petition, it was found that the order passed by this Court in the earlier round of litigation was complied with, but not within time prescribed by the Court, therefore, instead of punishing the respondents for committing contempt, a cost of rupees thousand was allowed to the petitioner and a liberty was granted to challenge the decision of the review DPC in appropriate writ petition. Since the claim of the petitioner was not rightly considered, the adverse Annual Confidential Reports (hereinafter referred to as ACRs for brevity) were either not communicated or which were communicated and against which the representation was already made, but was not decided, were taken into consideration by the earlier DPC, therefore, consideration of such a claim of the petitioner was not done in appropriate manner. It is contended that since the respondents were neither producing the record before this Court nor were filing any return in appropriate manner, it would be proper to grant the reliefs claimed by the petitioner.
2: On the basis of these allegations, the petitioner has claimed the following reliefs :-
"(i) The proceedings of DPC/review DPCs stated to have been convened on 1.12.1998 showing position as on 16.8.83, 12.9.86, 2.1.88, 26.11.88 and 14.9.89 and also review DPC stated to have been convened on 25.5.2007 be quashed. Contents of Annexure P-9 and Annexure P-20 be quashed.
(ii) The petitioner be given proforma promotion to the post of Assistant Grade One from the date a first grade clerk (Assistant Grade-II) junior to the petitioner or who has passed the prescribed examination after 1982 with all ancillary benefits.
(iii) The case of the petitioner be also considered for proforma promotion to the post of Assistant Superintendent if seniority so permits.
(iv) The petitioner be also granted interest on the sums involved from the date of proforma promotion claimed till payment thereof.
(v) Cost and expenses of this petition be also awarded.
(vi) Any other relief which this Hon'ble Court may
deemed fit and proper in the facts and
circumstances of the case be also awarded in the interest of justice."
3: This Court entertained the petition and issued the notices to the respondents. Even after service of the notice on the respondents, no return whatsoever was filed by them. The petitioner moved certain applications for taking additional documents on record which application was allowed on 8.3.2010. Again the respondents were allowed time to file the return, but no return whatsoever was filed. The petitioner has obtained certain documents under Right to Information Act, relating to consideration of the claim of petitioner by the DPC and such documents were taken on record on 1.10.2010. Again the respondents were granted an opportunity to file the return by way of counter affidavit, but the same was not filed. On an application made by the petitioner, looking to the age of the petitioner, the hearing of the petition was expedited and this is how the writ petition is listed. There is no return filed by the respondents in the present case nor any original documents are produced for perusal of the Court.
4: Learned counsel for the petitioner has invited attention of this Court to the statutory provisions of the Rules of which abstract of Schedule-IV is placed on record, and has indicated that for promotion on the post of Head Assistant, only certain years of service is required, which the petitioner had fulfilled. The petitioner had not only worked on the feeder post for sufficient time, but has passed the superior clerkship examination as was duly certified, in the year 1965, 1981 and 1982. Juniors to the petitioner were promoted in the year 1986, against which claim was made by the petitioner and representations were submitted. The details were shown as to how the petitioner was to be considered and promoted, but the representation was not properly decided, therefore, the Original Application was required to be filed before the Tribunal. The order communicating the decision on the representation and rejecting the claim of the petitioner was challenged in the said Original Application which was decided in terms of the direction issued by this Court referred to herein above. It is pointed out that on earlier occasions as also in this writ petition it was specifically pleaded that in terms of the instructions issued by the General Administration Department of Government of Madhya Pradesh, the representation made by the petitioner against the adverse ACR was to be decided expeditiously or else adverse entry was to be treated as expunged. In view of the law laid down by this Court, and the Apex Court, it is contended that an adverse entry recorded in the confidential report against which if a representation is made and is not decided, the same is to be ignored. This being so, it is contended by learned counsel for the petitioner that in fact the review DPC again considered the very same adverse entries which were recorded in the confidential report of the petitioner, one of which was not communicated to him and the representation made against the communicated adverse ACR was kept pending. If these two ACRs are ignored and the previous years ACRs are taken into consideration, the petitioner could not be denied promotion on the post of Assistant Grade-I. Drawing attention of this Court to the documents filed along with the aforesaid interlocutory applications, it is pointed out that the DPC which was convened in the year 1998 though had adopted the same norms for reviewing the claim of petitioner for grant of promotion as were adopted in the year 1986, but had again taken into consideration the ACRs which were adverse and which were not communicated to the petitioner.
5: In fact, an adverse ACR of the year 1981 was communicated to the petitioner of which a representation was made by him, but the same was not decided. No adverse ACR of the year ending 31.3.1985 was communicated to the petitioner. An adverse ACR of the year 1987 was communicated to him against which again the representation was made by the petitioner. It is pointed out that on earlier occasion, the claim of the petitioner was not rightly considered only because the ACRs of the year 1981 and 1985 were taken into consideration by the DPC of the year 1986. His consideration was further delayed only because of a pending departmental enquiry, which ultimately culminated in a penalty in the year 1993, and which order is set aside by this Court in Writ Petition No.9212/2003 decided on 21.3.2007. It is contended that after the decision in the said writ petition, because of the penalty, the claim of petitioner for promotion cannot be postponed. Further, whenever the review DPC meeting was convened, only the adverse ACRs were taken into consideration and because of that the petitioner was denied promotion otherwise there was nothing to deny him the promotion. It is contended that for promotion if adverse ACRs are ignored and previous two ACRs are taken into consideration, as reflected in the master chart provided to the petitioner along with the DPC record, under Right to Information Act, the petitioner would be entitled to grant of promotion as he would have achieved the minimum bench- mark fixed for grant of such promotion. This particular aspect was not considered even when again a review DPC was held on 25.5.2007 and same mistake was committed by the respondents in assessing the claim of the petitioner. Subsequent adverse ACRs would not change the consideration of the claim of petitioner which was to be made on a date prior to writing of those ACRs and, therefore, the entire consideration of the petitioner was improperly done by the respondents which required interference by this Court in exercise of its extraordinary power of judicial review of an administrative action of the respondents.
6: Per contra, it is contended by learned Govt. Advocate that this Court would not require to exercise such power under given circumstances, inasmuch as, the consideration of the claim of promotion as directed by this Court by holding a review DPC has already been conferred on the petitioner in rightful manner and this aspect was considered by this Court while deciding the Contempt Petition of the petitioner. It is contended that had it been non-compliance of the order of this Court, in the Contempt case while passing the order, such a fact would have been recorded by this Court. That being so, it is incorrect to say that the claim of petitioner was not rightly considered. It is further contended that the settled law is that an employee has only one right i.e. right of consideration for promotion and the promotion itself which cannot be claimed as of right. In view of this, it is contended that the entire claim made in the writ petition is misconceived and the petition being bereft of any merit deserves to be dismissed.
7: Heard learned counsel for the parties at length and perused the record.
8: In absence of any rebuttal of the documentary evidence produced by the petitioner, on behalf of the respondents as they have not filed any return or have not produced the documents or DPC record for perusal of this Court, the documents produced by the petitioner, relating to consideration of the claim of petitioner for promotion, have to be accepted. Virtually, the said documents have been obtained by the petitioner under Right to Information Act. Coupled with this, if the return filed on earlier occasion by the respondents in the Original Application is taken note of, copy of which is placed on record as Annx.P/8, it is clear that till the date of retirement, the claim of petitioner was to be considered for promotion. Undisputedly, the petitioner has attained the age of superannuation on 31.8.1990. The departmental enquiry which was initiated against him in the year 1986, ultimately culminated in a penalty of withholding of increments of pay which order was issued against the petitioner after almost three years of his retirement on 11.6.1993, coupled with a direction to recover a sum of Rs.10,000/- from the petitioner. The said order was set aside by this Court on 21.3.2007 passed in Writ Petition No.9212/2003. As a result of the said order which attained the finality, if the claim of petitioner was considered in the DPC of the year 1986 and was kept in the sealed cover, the recommendations made in his respect were to be looked into. It appears from the return filed by the respondents that because of passing of certain examination and making of entries in the service book, the case of the petitioner was put for review again and in overall consideration, again he was not found fit for promotion upto the year 1989. It is stated that minimum benchmark fixed for grant of such promotion by the DPC was 9 on the assessment of the ACRs and on first found the ACR of the year ending March 1978 to March 1982 were taken into consideration, but the petitioner was not found fit for grant of such benefit. In 1986, the petitioner was again considered when his ACRs of the year 1981 to 1985 were taken into consideration, but again as he has not touched the benchmark, he was not found fit for grant of promotion. The DPC convened thereafter again considered and did not find the petitioner fit for grant of such promotion. However, the settled position of law is that though this Court is not required to act as any expert body like DPC, but still it has power to see whether consideration of the claim for promotion was rightly done by that expert body.
9: The documents placed on record as Annx.P/21 along with I.A.No.10473/2009 indicates that the entire proceeding of DPC was made available to the petitioner together with a master chart under Right to Information Act and was duly certified by the Public Information Officer of the department. From perusal of this record, it is seen that the ACRs of the petitioner for the year 1978 to 1982 contain the remarks of Satisfactory, Satisfactory, Satisfactory/Very Good, Adverse and Satisfactory respectively. The ACRs of the year 1981 was adverse and it was communicated to the petitioner and undisputedly against this ACRs, a representation was made by the petitioner, but the same was not decided. The law in this respect is very clear. The Apex Court in catena of decision has held that if an adverse entry is made in the confidential report, and such an entry is communicated and a representation is made against such an adverse entry, the same is required to be decided expeditiously. If this is not done, the adverse entry cannot be taken into consideration. In the case of U.P. Jal Nigam Vs. S.C. Atri and another [(1999) 1 SCC 241], the Apex Court has held that adverse entries in the confidential report are required to be communicated and if not communicated, the same is not to be taken into consideration. In the case of P.K. Shastri Vs. State of M.P. and others [(1999) 7 SCC 329], the Apex Court has pointed out the importance of writing of ACRs and it has categorically been held that for a single reason an ACR is not to be treated as adverse. As has been stated in the writ petition and various representations, the work of the petitioner while was found satisfactory, it was also recorded that he is fit for grant of promotion. How such an entry adverse to his interest could be recorded was required to be examined by the State or the competent authority and an order on his representation was required to be passed. Having failed to do so, it was not open to the authorities to take into consideration such an adverse entry in the case of Dev Datt Vs. Union of India (AIR 2008 SC 2513), the Apex Court has further held that even if though an entry made in the confidential report is not adverse, if it is coming in the way of promotion of an incumbent, it is required to be communicated and without the communication and consideration of the representation, such an entry is not to be taken into consideration for assessment of eligibility of an incumbent for promotion on any post. In view of this, the entire action taken by the respondents as reflected from the proceedings of the DPC placed on record referred to herein above is found to be incorrect.
10 : When in the year 1983, the claim of the petitioner was considered, the ACR of the year 1981, though adverse and communicated to him was taken into consideration. For the ACR of the year 1980, though it was graded as Very Good, which was given by the final accepting authority in the grading of ACR, the same was treated to be Average only and only one mark was given to the petitioner. If the ACR of the year 1981 was to be ignored, a previous ACR of the year 1977 was required to be taken into account grading of which is not reflected from any proceedings. If the right grading of the ACR of the year 1980 would have been done, the petitioner would have been given at least 4 marks and that being so, he would have earned out of four ACRs ignoring one adverse at least 7 marks, and that would have made entire change in the consideration, as if the grading of the 1977 ACR would have been taken into consideration, the petitioner might have achieved the benchmark of 9 marks minimum in the assessment of ACRs and would have been found fit for grant of promotion from the year 1983 itself when his batchmate and juniors were promoted.
11 : Apart from this, if the consideration done in the year 1986 is taken into consideration, the petitioner was again said to have obtained only 4 marks out of the ACRs of the year 1981 to 1985 and that is how he was treated to be unfit for grant of promotion in that year. The ACR of the year 1981 as is reflected herein above was adverse against which representation was already made by the petitioner. As per the record, the ACR of the year 1985 was not communicated to the petitioner and at least these two ACRs were not to be taken into consideration and the assessment of the claim of petitioner for promotion was to be done by taking two previous years ACRs i.e. the ACRs of the year 1979 and 1980 into consideration. As has been mentioned herein above according to the master chart made by the department and supplied to the petitioner under Right to Information Act, the ACR for the year 1979 was to be graded as Satisfactory and the ACR of the year 1980 was to be graded as Very Good. If the mark assessment is done on the basis of this, the petitioner would have earned 11 marks out of the assessment of his merit on the basis of ACRs in this year and would have been found fit for grant of promotion which the review DPC has not done. The same mistake was committed by the respondents and the DPC by considering the very same ACRs which were adverse and either not communicated or communicated, but against which the representation was not decided.
12 : In all totality of the circumstances, it is clear that rightful consideration of the claim of petitioner was not done in the entire review DPC proceedings. As has been observed by the Apex Court in the case of P.K. Shastri (supra) if adverse entries in the ACRs are made casually, this generates the frustration in the mind of an employee and in fact he becomes dishearten him to give better performance in service. In the case of Raghunath Prasad Singh Vs. Secretary Home (Police)Department, Government of Bihar and others (AIR 1988 SC 1033), it is held that if promotions are not prescribed or illegally denied, it generates frustration in the mind of the employee, resulting in adverse impact on the work performance. Non-consideration of previous ACR of the petitioner resulted in improper consideration for promotion, whereas, his juniors were given March over him in the matter of promotion, which has further downgraded his work performance as is evident from grading of subsequent ACR.
13 : Keeping in view of the aforesaid, the orders so passed by the respondents cannot be sustained. Such order dated 16.7.2007 Annx.P/20 is bound to be and is hereby quashed. The respondents will consider the ACRs of the petitioner for the year 1979 and 1980 ignoring the adverse ACRs of the petitioner and review the case of the petitioner for grant of promotion as was considered in the year 1983 and 1986 strictly in accordance to the observations and findings recorded herein above with respect to the nature of the ACRs within a period of three months from the date of receipt of certified copy of the order passed today. Needless to say while deciding the earlier petition of the petitioner, this Court has already directed that in case the petitioner is found fit for such promotion, then all monetary benefits would be given to the petitioner. Let this be done within the aforesaid period.
14 : The writ petition is allowed to the extent indicated herein above. There shall be no order as to costs.
(K.K.Trivedi) Judge A.Praj.
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR Writ Petition No.15164/2007 Ram Niwas Awasthy
-Versus-
State of M.P. and others.
O R D E R
( .9.2013)
Post it for /9/2013
(K. K.Trivedi)
Judge