Madhya Pradesh High Court
R. K. Parashar vs Madhya Pradesh State Electricity Board on 18 September, 2012
1
HIGH COURT OF MADHYA PRADESH : JABALPUR
WRIT PETITION No.19207/2011
R.K. Parashar
Vs.
M.P. Power Management Company & others
_______________________________________________________________
Shri V.S. Shroti, learned Senior Counsel assisted with Shri Amit
Nagpal, learned Counsel for the petitioner.
Shri Sanjay Agrawal, l earned Counsel for respondents No.1
to 3.
Shri Manoj Sharma, learned Counsel for respondent No.4.
_______________________________________________________________
Present : Hon'ble Shri Justice K.K. Trivedi
_______________________________________________________________
O R D E R
(______/09/2012) By this writ petition under Article 226 of the Constitution of India, the petitioner has called in question the order dated 03.06.2010 passed by the respondents granting promotion to the juniors to the petitioner and the subsequent order dated 15.10.2011 by which further juniors to the petitioner have been promoted superseding the claim of the petitioner for promotion on the post of Additional Director (Finance & Accounts), on the ground that appropriate consideration of the petitioner was not done and dehors the rules, the ACR in which adverse entry was recorded, was communicated to the petitioner much after the period of writing the ACR and the said adverse entry was taken into consideration by the respondents while considering the claim of the petitioner and illegally he has been superseded, though he too would have achieved the benchmarks fixed for promotion, had his rightful consideration been done. It is contended by the petitioner that there was some dispute of fixation of seniority of the petitioner vis-à-vis respondent No.3, such a claim was made before the Court. There were certain posts of Additional 2 Director (Finance & Accounts) available and on such posts the persons working on the posts of Joint Director were to be considered for promotion. The provisions of Madhya Pradesh Public Services (Promotion) Rules, 2002 (herein after referred to as 'Rules') are squarely applicable in the matter of such promotion and as per Rule 7 of the Rules, such consideration was to be done strictly on merit-cum-seniority basis but though one ACR of petitioner was not available and in one ACR of the petitioner, adverse entry was recorded and the representation made by the petitioner was pending, yet only on the basis of three ACRs, evaluation of the merit of the petitioner was done and he was not granted promotion as it was held that he was not found fit for such promotion. It is contended that since in further DPC again the mistake was committed, petitioner was illegally superseded in the matter of promotion and, therefore, he was required to approach this Court.
2. The contention raised by the petitioner in short is that he was working in the establishment of respondents No.1 and 2. Earlier a scheme was floated by the Board, when the Madhya Pradesh State Electricity Board was in existence, for appointment of personnel from other wings including Engineering Wings to Finance and Accounts Wings. A competitive examination comprising of written test, group discussion, interview was held for appointment on the posts of Finance & Accounts Wing. The petitioner took part in the said selection, topped the list and was appointed as Senior Accounts Officer vide order dated 25.05.1993. On account of excellent performance of the duties by the petitioner, he was given the charge of the higher post of Assistant Chief (Accounts) in the year 1996. Subsequently, the petitioner was promoted on the post of Assistant Chief (Accounts) on 23.09.1998. Subsequently, the designation of the post was changed to be Joint Director (Accounts).
33. It is the contention of the petitioner that there was some dispute with respect to the seniority vis-à-vis respondent No.3 and a writ petition was required to be filed by the petitioner before this Court being W.P. No.1193/1995. The said petition was allowed and consequently the seniority of the petitioner was fixed over and above respondent No.3 vide order dated 15.07.2006, in the cadre of Assistant Chief (Accounts/Finance/ Audit). There were certain posts of Additional Director (Finance & Accounts) and as per the policy made by the Board as also under the provisions of the Rules, the said post was to be filled in by promotion, which was to be done on the basis of merit-cum-seniority. A benchmark of 12 was fixed for the purpose of assessment of ACRs. A panel was constituted and thereafter order of promotion was issued on 03.06.2010 promoting respondent No.3 and superseding the petitioner. He immediately made a representation on 07.06.2010. However, nothing was done. The ACR of the year 2006-2007 of the petitioner was not written within time. Much after time, just on the eve of the D.P.C., adverse ACR of 2006-2007 was communicated to the petitioner. He made a representation and the said representation was considered later on. The ACR of the petitioner was upgraded to 'C' category vide order dated 22.07.2010. However, since the DPC was held on 13.01.2010 in which the case of the petitioner was already considered and at that time though the representation was made against the adverse entry, the same was pending consideration, adverse entry was taken into consideration by the DPC and the petitioner was not found fit for promotion. The petitioner learnt that the ACR of the year 2008-2009 was not available. In fact the consideration of the petitioner was done only on the basis of three ACRs and he was not found fit for promotion. Thus, such a consideration was bad. However, since nothing was done with respect to the representation made by the petitioner and in further DPC again the petitioner was superseded, he was required to file the writ petition. It is contended that if rightful consideration would have been done, the petitioner would have been promoted on the post of 4 Additional Director (Finance & Accounts). This being so, it is contended that all such actions of the respondents are bad in law.
4. Upon service of the notices of the writ petition, the respondents have come with the plea that rightful consideration of the claim of the petitioner was done. The Madhya Pradesh State Electricity Board has been dissolved and five companies have been established. The entire function of the said Board is entrusted to the companies. It is contended that the minimum benchmark was fixed. As per the available ACRs, the claim of the petitioner was considered. Since he could not achieve the benchmark, he was not selected for grant of promotion. It is further contended that in case the upgraded remark of the petitioner, as has been done subsequently, is taken into consideration even then he will not achieve the marks enough to cover up the benchmark and, therefore, no illegality whatsoever is committed by the respondents in considering and rejecting the claim of the petitioner. It is contended that from the perusal of the consideration done in respect of the petitioner, it would be abundantly clear that no illegality was committed by the respondents in considering the case of the petitioner and as such the writ petition is totally misconceived and is liable to be dismissed. It is further contended that in the next year also the gradings of the ACRs of the petitioner were considered and it was found that he has failed to achieve the benchmark, therefore, again the petitioner was not selected for promotion. It is contended that the power of judicial review vested in this Court to examine the correctness of the action taken by the respondents, especially in the matter of promotion, is limited and this Court is not required to act as Court of appeal in the matter of promotion nor the findings recorded by the DPC are to be interfered. It is also contended that in the next year also when the claim of the petitioner was considered, the upgraded remarks of the petitioner were taken into consideration and since he again failed to achieve the benchmark, he was 5 superseded in the matter of promotion. It is contended that the Review Committee which has considered the representation of the petitioner against the adverse entry has in fact upgraded adverse ACR of the petitioner and, therefore, the allegations of malafide leveled against the respondents are totally misconceived and baseless. Thus, it is contended that the petition is liable to be dismissed.
5. The respondent No.4 has filed a return as he has been impleaded as party by name and certain allegations against him have been made that he persuaded the authorities to pass such orders on the representation of the petitioner against the adverse entry because if the adverse entry was completely expunged, the ACR of the petitioner is properly upgraded, the petitioner would have been selected for promotion. This being so and because of the allegation made by the petitioner against respondent No.4 that because of personal bias such an action is taken, return has been filed by respondent No.4 and he has denied all such allegations of bias and malafide. However, the same will not carry much weight in the present situation as if the petitioner was rightly considered and not found fit for promotion on the first occasion, subsequent consideration of the petitioner could not be said to be faulty one.
6. Heard learned Counsel for the parties at length and minutely examined the record and also perused the original record of DPC.
7. It is to be seen that though the policy of promotion is made by the respondents but the statutory rules have been made applicable to the establishment of respondents No.1 and
2. In fact no debate is required on such an issue as in catena of decisions it has been held that the rules are applicable in the establishment of respondents No.1 and 2. In terms of the definition given in Rule 2(f) of the Rules, no doubt is left that the Rules are applicable in the establishment of respondents 6 No.1 and 2 as is prescribed in Rule 3 of the Rules. This being so, only this much is required to be examined whether on the first occasion proper compliance of the Rules was done or not. Much debate has been put by learned senior Counsel for the petitioner on the issue that consideration was not rightly done and in rebuttal submission of the learned Counsel for the respondents is that consideration was rightly done. The DPC for the purposes of considering the case for promotion on the post of Additional Director (Finance & Accounts) was convened on 13th January, 2010. The DPC resolved that the ACRs with effect from the year 2005 to 2009 would be taken into consideration. The adverse entry recorded in the ACR folder of the petitioner for the period with effect from 01.04.2006 to 31.03.2007 was written only on 21.02.2009. The same was required to be placed before the Reviewing Authority but instead of placing the same before the Reviewing Authority the same was sent to the approving authority, the Chairman of the Board, who approved the same on 21.12.2009. This fact is clearly indicated in Annexure P-14, which the petitioner has obtained under Right to Information Act. Thus, this ACR of the year 2006-2007 was not to be taken into account for consideration by the DPC on 13.01.2010 because the time for making representation by the petitioner against the said adverse entry was not expired till that time. There was inordinate delay in writing the ACR of the aforesaid year. The adverse entry was communicated to the petitioner only on 24.12.2009 vide Annexure P-17, against which he made representation within time on 18.01.2010. These facts relating to writing of ACR in such a fashion should have been noted down by the DPC and this particular ACR should have been ignored completely in all fairness. Now the other fact is that there was non-availability of ACR for the year 2008-2009. The petitioner is right in saying that his consideration was done only on the basis of three ACRs as the adverse ACR of the year 2006-2007 was to be ignored and there was no ACR for the year 2008-2009 available before the DPC. The record further indicates that grading was done. The petitioner was 7 given 'B' category in the year 2005-2006 and 'A' category in the year 2007-2008. Only on the basis of marks given for these gradings, assessment of the petitioner was done and it was said that he had not achieved the benchmark.
8. Rule 7 of the Rules prescribes the manner in which the cases for promotion on the basis of merit-cum-seniority criteria are to be considered. The provisions of sub-rule (6), sub-rule (7), sub-rule (8) and sub-rule (9) of the Rules are relevant for the purposes of adjudication of this writ petition, therefore, same are reproduced for ready reference :
"7(6).The Departmental Promotion/Screening Committee shall assess the suitability of the public servants for promotion on the basis of their service record and with particular reference to the Annual Confidential Reports (ACRs) for 5 preceding years. However, in cases where the required qualifying service is more than 5 years, the Departmental Promotion/Screening Committee shall see the record with particular reference to the ACRs for the years equal to the required qualifying service.
7(7). When one or more ACRs are not available for any reason for the relevant period, the Departmental Promotion/Screening Committee shall consider the ACRs of the years preceding the period in question.
7(8). For the eligibility for promotion from class I to higher pay scale of class I posts, the benchmark grade shall be "Very Good".
7(9). The Departmental Promotion/Screening Committee shall make a relative/comperative assessment of the merits of public servants who are within the zone of consideration and made an overall grading of the public servants merit on the basis of their service records and place them in the categories as "Outstanding", "Very Good", "Good", "Average" and "Poor" as the case may be.
However, only those public servants who are graded as "Very-Good" an above will be included in the select list, by placing the public servants graded as "Outstanding" on top followed by those graded as "Very-
Good", subject to availability of vacancies, 8 with the public servants with the same grading maintaining their inter-se-seniority in the feeder cadre/part of the service/pay scales of post."
A bare reading of sub-rule (7) of Rule 7 of the Rules will make it clear that when one or more ACRs are not available for any reason for the relevant period, the Departmental Promotion Committee was required to consider the ACRs of the years preceding the period in question. The future ACRs were not to be taken into consideration but only the preceding years ACRs were to be looked into by the Departmental Promotion Committee. As has been held herein above, while making the consideration, the ACR of the petitioner for the year 2006-2007 was not to be taken into note of because of the reasons stated above and the ACR for the year 2008-2009 was not available on the date of DPC. Thus, only two ACRs preceding the period prescribed were to be taken into consideration. The two ACRs would have been the ACRs of the years 2002-2003 and 2003-2004. The ACR folder of the petitioner is produced before this Court for perusal which indicates that for the year 2002-2003 the petitioner was graded 'A'. For the year 2003-2004 the petitioner was graded 'B'. If these two ACRs and marks of these two ACRs are taken into consideration, the petitioner would have been given the following marks :
Year Marks 2002-2003 - 3 2003-2004 - 2 2004-2005 - 2 2005-2006 - 2 2007-2008 - 3 ___________ Total : 12 marks ___________
Thus, the petitioner would have achieved the benchmark fixed by the DPC. Now the only thing is to be seen whether merely because the petitioner would have achieved the benchmark, could he be given the promotion. The manner for preparing 9 the select list indicates that looking to the vacancies available, select list was to be prepared in merit order, putting the outstanding officers on the top, then putting the very good officers below them and arranging the good and average officers thereafter. Only up to the very good officers the promotions were to be made. The benchmark fixed itself shows that it was assigned for very good officers. Once the benchmark is achieved by the petitioner, inter se seniority is to be taken into consideration and the list is to be prepared. As has been found herein above, the petitioner would have achieved the benchmark, that means he was to be graded a very good officer, naturally the petitioner was required to be included in the list of selected candidate for promotion on the next higher post. Of course the persons, who have not achieved the benchmark, were not to be granted the promotion. The DPC proceeding indicates that the select list was arranged in order of seniority with respect to those, who have achieved the benchmark. The merit list was not prepared on the basis of the marks obtained by the officers in the evaluation of the ACRs. Thus, if the petitioner was found to be declared fit for promotion, he would have been put at S.No.3 of the list as was done by the DPC while preparing the select list. This further indicates that there was no application of mind by the DPC in considering the case of the petitioner in appropriate manner. Thus, it cannot be accepted that the case of the petitioner was rightly considered by the DPC and as such there was no scope of judicial review of the action of the respondents.
9. Learned Senior Counsel for the petitioner has vehemently contended that the law is well settled long back and in case of Amar Kant Choudhary vs. State of Bihar and others, AIR 1984 SC 531, their Lordships considering the law laid-down by the Apex Court in the case of Gurdial Singh Fijji vs. State of Punjab, AIR 1979 SC 1622, have categorically held that the consideration of a claim of promotion is to be done on the basis of rightful appreciation of 10 the ACRs and not merely as an empty formality. It is further contended by learned Senior Counsel for the petitioner that similar position of law is reiterated by the Apex Court in the case of State of Haryana vs. Shri P.C. Wadhwa, IPS, Inspector General of Police and another, AIR 1987 SC 1201. Further placing reliance in the case of V. Kashyap and another vs. Indian Airlines and others, AIR 1994 SC 2128, it is contended that in case of non-availability of the ACRs, the preceding years ACRs were to be taken in consideration. It is further contended by learned Senior Counsel for the petitioner that the law is well settled that in case an incumbent is made to officiate on higher post, his ACR for that particular period should be upgraded by one step. Placing reliance in the case of Shiv Kumar Sharma and another vs. Union of India and others, (1997) 11 SCC 112, it is contended that such is the scheme made by the Full Bench of the Central Administrative Tribunal duly affirmed by the Apex Court and, therefore, said formula should have been made applicable in the case of the petitioner as he too was given the officiating charge of the next higher post on several occasions. Similarly, learned Senior Counsel for the petitioner has heavily put his reliance with respect to the adverse remarks in the confidential reports as have been dealt with in the case of Dev Dutt vs. Union of India and others, (2008) 8 SCC 725 and has lastly put his reliance in the case of Ravi Yashwant Bhoir vs. District Collector, Raigad and others, (2012) 4 SCC 407, contending that the malice in law and malice in fact are required to be distinguished. The malice in law as indicated by the Apex Court is apparently available in the case as appropriate consideration of the petitioner was not done as per the law and, therefore, such a consideration is bad in law and is liable to be turned down. It is further contended by learned Senior Counsel for the petitioner that in case the consideration is done in rightful manner, it would be abundantly clear that downgrading in the ACR of the petitioner was done with malafide intention so that he may be denied promotion when it is based on merit-cum-
11seniority criteria. Placing reliance in the case of S. Ramachandra Raju vs. State of Orissa, 1994 Supp (3) SCC 424, it is contended that deliberate downgrading by a particular officer, who was posted for some period and with respect to whom there were differences between the petitioner and the said officer, deliberate downgrading was to be ignored and the ACR of the petitioner was required to be upgraded keeping in mind the previous record of the petitioner.
10. Per contra, it is contended by learned Counsel for the respondents that law is well settled that there is limited scope for interference in the proceedings of DPC and power of judicial review cannot be stretched to such an extent that the Court become the Court of appeal over the findings recorded by the DPC. For the said purpose, learned Counsel for the respondents has placed his reliance in the case of R.L. Butail vs. Union of India and others, (1970) 2 SCC 876. Further taking this Court to the law laid-down by the Apex Court in the case of Badrinath vs. Government of Tamil Nadu and others, (2000) 8 SCC 395 as also to the law laid-down by the Apex Court in the case of Union of India and another vs. S.K. Goel and others, (2007) 14 SCC 641, it is contended that the power of judicial review is very limited and this Court will not act as a Court of appeal to probe in the matter of consideration by the Selection Committee. It is contended that in view of the aforesaid pronouncements, no scope is left out to interfere in the proceedings. Further referring to the law laid-down by the Apex Court in the case of Shiv Kumar Sharma and another (supra) and reading paragraph 1 of the report, learned Counsel for the respondents contended that said law is not applicable in the present case as the said petitioner in the said case was holding the dual charge at the relevant time and in such circumstances it was said that the grading of the ACR was to be upgraded by one step. This was not the situation in the case in hand and the petitioner was given only Kramonnati on 12 account of which he was given the higher pay scale of the promotional post but not charge of the promotional post. On certain occasion, for limited period the charge was given to the petitioner and, therefore, the grading for that particular period was not to be upgraded. Since there was proper consideration of the claim, nothing was to be adjudicated. Learned Counsel for respondent No.4 has adhered to the submissions made by learned Counsel for respondents No.1 and 2 contending that the gradings of the ACR of the petitioner were upgraded by the Committee in which the respondent No.4 was also included. Respondent No.4 was inducted in the said review committee of ACR by the respondents much before and there was no question of his bias or improper action in the matter of the consideration of representation. However, there was no question of any malafide or personal bias. Had it been so, the ACR of the petitioner would not have been upgraded to 'C' from 'D' category.
11. The rival submissions of learned Counsel for the parties are considered. The law is well settled on the point whether the Court has power of judicial review of such action of departmental promotion or not. While describing the malice in law, the Apex Court has very categorically held that where something, which is required to be done in accordance with law, is not done in appropriate manner, it would mean nothing but malice in law. The action taken without the lawful excuse is to be treated as malice in law. In case of Ravi Yashwant Bhoir (supra), while dealing with such circumstances, the Apex Court has very categorically held thus :
"47. This Court has consistently held that the State is under an obligation to act fairly without ill will or malice in fact or in law. Where malice is attributed to the State, it can never be a case of personal ill will or spite on the part of the State. "Legal malice"
or "malice in law" means something done without lawful excuse. It is a deliberate act in disregard to the rights of others. It is an act which is taken with an oblique or indirect object. It is an act done wrongfully and wilfully without reasonable or 13 probable cause, and not necessarily an act done from ill feeling and spite.
48. Mala fide exercise of power does not imply any moral turpitude. It means exercise of statutory power for "purposes foreign to those for which it is in law intended". It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, where intent is manifested by its injurious acts. Passing an order for unauthorized purpose constitutes malice in law. (See ADM, Jabalpur v. Shivakant Shukla, Union of India v. V. Ramakrishnan and Kalabharati Advertising v. Hemant Vimalnath Narichania)".
This Court has examined the DPC record and has reached to the conclusion that lawfully the ACR for the year 2006-2007 of the petitioner was not to be considered at all. As per the provisions of Rule 7(7) of the Rules, if the ACR was not available for any particular year, the preceding years ACRs were to be taken into consideration. It is not that such ACRs of the petitioner were not available as this Court itself has examined the ACR folder and has found that if the preceding two years ACRs would have been taken note of, the petitioner would have achieved the benchmarks fixed by the DPC. If this is not malice in law, what else would be. This being so, this Court has the power of judicial review and the law laid-down by the Apex Court which put restriction in certain circumstances, would not come in the way of exercising the power of judicial review by this Court. Such submissions of learned Counsel for the respondents, thus, cannot be accepted at all.
12. In the case of Amar Kant Choudhary (supra), the Apex Court taking note of the law laid-down by the Supreme Court in the case of Gurdayal Singh Fijji (supra), has discussed the effect of an adverse entry. Recording consideration of the law laid-down in the case of Gurdayal Singh Filli (supra), the Apex Court in the case of Amar Kant Choudhary (supra) has held in paragraph 8 thus :
14"8. After giving our anxious consideration to the uncontroverted material placed before us we have reached the conclusion that the case of the appellant for promotion to the Indian Police Service Cadre has not been considered by the Committee in a just and fair way and his case has been disposed of contrary to the principles laid down in Gurdial Singh Fijji's case (AIR 1979 SC 1622) (supra). The decisions of the Selection Committee recorded at its meetings in which the case of the appellant was considered are vitiated by reason of reliance being placed on the adverse remarks which were later on expunged. The High Court committed an error in dismissing the petition of the appellant and its order is, therefore, liable to be set aside. We accordingly set aside the order of the High Court. We hold that the appellant has made out a case for reconsideration of the question of his promotion to the Indian Police Service Cadre of the State of Bihar as on December 22, 1976 and if he is not selected as on that date for being considered again as on March 12, 1981. If he is not selected as on March 12, 1981 his case has to be considered as on October 14, 1981. The Selection Committee has now to reconsider the case of the appellant accordingly after taking into consideration the orders passed by the State Government subsequently on any adverse entry that may have been made earlier and any other order of similar nature pertaining to the service of the appellant. If on such reconsideration the appellant is selected he shall be entitled to the seniority and all other consequential benefits flowing therefrom. We issue a direction to the respondents to reconsider the case of the appellant as stated above. We hope that the above direction will be complied with expeditiously but not later than four months from today."
Again the Apex Court has considered making of ACRs in the case of State of Haryana Vs. Shri P.C. Wadhwa (supra) and has noted down the provisions of making such ACRs and their importance in the following manner :
"14. The whole object of the making and communication of adverse remarks is to give to the officer concerned an opportunity to improve his performances, conduct or character, as the case may be. The adverse remarks should not be understood in terms of punishment, but really it should be taken as an advice to the officer 15 concerned, so that he can act in accordance with the advice and improve his service career. The whole object of the making of adverse remarks would be lost if they are communicated to the officer concerned after an inordinate delay. In the instant case, it was communicated to the respondent after twenty seven months. It is true that the provisions of Rules 5, 6, 6A and 7 are directory and not mandatory, but that does not mean that the directory provisions need not be complied with even substantially. Such provisions may not be complied with strictly, and substantial compliance will be sufficient. But, where compliance after an inordinate delay would be against the spirit and object of the directory provision, such compliance would not be substantial compliance. In the instant case, while the provisions of Rules 5, 6, 6A and 7 require that everything including the communication of the adverse remarks should be completed within a period of seven months, this period cannot be stretched to twenty seven months, simply because these Rules are directory, without serving any purpose consistent with the spirit and objectives of these Rules. We need not, however, dilate upon the question any more and consider whether on the ground of inordinate and unreasonable delay, the adverse remarks against the respondent to say that we do not approve of the inordinate delay made in communicating the adverse remarks to the respondent."
The petitioner was not at fault of not writing ACR for long time and keeping it pending and again getting it hurriedly finalized only on the eve of DPC. In such circumstances, such an ACR was not at all to be taken into consideration by the DPC as held by the Apex Court in the case of V. Kashyap and another (supra). Paragraph 5 of the report is quoted below for appreciation :
"5. On the aforesaid facts the question is whether the view taken by the High Court can be sustained. The reason given by the High Court is that Shri Prasad being available, the fact that he did not agree to write the APRs could not be used against the writ petitioner permitting respondent No. 1 to attach an other criterion beyond prescribed guidelines. We are, however, of the view that for the aforesaid disinclination of Shri Prasad to write the two APRs, the reasons of which cannot be said to be motivated or untenable, the 16 High Court took an unreasonable view by observing that the non-writing of two APRs was due to 'lapse and fault of respondent No. 1'. It is really not a question of taking advantage of 'one's own default' as observed by the High Court. According to us, in the facts and circumstances of the case the consideration of the APRs of the years 1985- 86, 1986-87 and 1987-88, which were the APRs of the three preceding available years, has to be taken as a due compliance of the guidelines in this regard. The ratings as per these three APRs gave a total of 35.68 insofar as respondent No. 4 is concerned, whereas the two appellants got 39.84 and 39.68 respectively. In the interview also the two appellants got more marks than respondent No. 4 as would appear from the averment made in para 7 of the Special Leave Petition, which fact has not been disputed in the counter- affidavit filed by respondent No. 4."
Now in view of this well settled position of law when the conduct of DPC is seen by this Court, it is abundantly clear that there was no rightful appreciation of the merits of the petitioner inasmuch as the proper procedure for evaluation of ACR was not followed by the DPC. This Court will not hesitate in such circumstances to exercise its power of judicial review and taking such steps. The submissions made by the learned Counsel for the respondents that looking to the ACRs of the petitioner as enumerated in the return by making the chart, no useful purpose would be served by remitting the matter to the respondents for holding the review DPC, is to be repelled in view of the findings recorded herein above.
13. Consequently, the writ petition is allowed to the extent that the proceedings of the DPC in so far as consideration of the petitioner for promotion on the post of Additional Director (Finance & Accounts) as was done on 13.01.2010 is hereby quashed. The matter is remitted back to the respondents for holding a review DPC taking into account the available ACRs of the petitioner of the years 2002-2003, 2003-2004, 2004-2005, 2005-2006 and 2007-2008, as would have been available on the date when the DPC was held, and to re-assess the merits of the petitioner. After due consideration, the merit list be re-
17arranged according to the seniority of the officers so considered and the junior most person promoted on the basis of such consideration be reverted and in his place promotion be given to the petitioner with all consequential benefits. Necessary exercise be completed within a period of one month from the date of receipt of certified copy of this order. In case of promotion, the petitioner would be entitled to all the consequential benefits of such promotion including the pay and allowances of the promotional post and the seniority on the said post.
14. The writ petition is allowed to the extent indicated herein above. There shall be no order as to costs.
(K.K. Trivedi) Judge Skc