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Madhya Pradesh High Court

Narayan Prasad Namdeo vs The State Of Madhya Pradesh on 12 December, 2023

                                                              1
                            IN     THE       HIGH COURT OF MADHYA PRADESH
                                                  AT JABALPUR
                                                       BEFORE
                                           HON'BLE SHRI JUSTICE VINAY SARAF
                                              ON THE 12 th OF DECEMBER, 2023
                                              WRIT PETITION No. 11641 of 2023

                           BETWEEN:-
                           NARAYAN PRASAD NAMDEO S/O SHRI V. N.P. NAMDEO,
                           AGED ABOUT 52 YEARS, OCCUPATION: DEPUTY
                           SECRETARY, BACKWARD CLASS AND MINORITY
                           WELFARE DEPARTMENT, MANTRALAYA, VALLABH
                           BHAWAN BHOPAL R/O A-1, SAGAR ESTATE, AYODHYA
                           BYPASS, BHOPAL (MADHYA PRADESH)

                                                                                               .....PETITIONER
                           (BY SHRI MANOJ KUMAR SHARMA - SENIOR ADVOCATE WITH SHRI
                           QUAZI FAKHRUDDIN - ADVOCATE)

                           AND
                           1.    THE STATE OF MADHYA PRADESH THROUGH ITS
                                 PRINCIPAL      SECRETARY,      GENERAL
                                 ADMINISTRATION DEPARTMENT (PERSONNEL
                                 DIVISION), MANTRALAYA, VALLABH BHAWAN
                                 BHOPAL (MADHYA PRADESH)

                           2.    THE CHIEF SECRETARY, THE STATE OF MADHYA
                                 PR AD ESH, MANTRALAYA VALLABH BHAWAN,
                                 BHOPAL (MADHYA PRADESH)

                           3.    UNION   PUBLIC    SERVICE COMMISSION,
                                 THROUGH ITS SECRETARY, DHOLPUR HOUSE,
                                 NEW DELHI (DELHI)

                                                                                             .....RESPONDENTS
                           (BY SHRI SWAPNIL GANGULY - DEPUTY ADVOCATE GENERAL)

                                 Th is petition coming on for hearing this day, th e court passed the
                           following:
                                                               ORDER

With the consent of the parties, matter is finally heard.

2. In this petition filed under Article 226 of the Constitution of India, the Signed by: MOHD IRFAN SIDDIQUI Signing time: 12/14/2023 6:25:16 PM 2 petitioner has prayed for following relief (s):-

"( i ) To call for the entire material record from the possession of the official respondent authorities for its kind perusal by this Hon'ble Court.

(ii) To issue a writ in the nature of mandamus treating ACR of 2016-17 as NRC and to enhance to recon ACR of earlier period in terns of the extent rules int he forth coming selection committee meeting dated 19.5.2023 or thereafter as the case may be.

(iii) To issue a writ in the nature of prohibition restraining the selection committee from considering ACR of 2017-17 as average.

(iv) Issue any other writ, order or direction as this Hon'ble Court deems fit.

(v) Cost of the petition is awarded to petitioner."

3. The following facts are admitted in the present matter-

(A) The petitioner was appointed as Deputy Collector in the State of M.P. after clearing the State Public Service Commission Examination and joined the State Administrative Service, in the year 1998 and thereafter promoted to the post of Joint Collector and Additional Collector in the year 2013.

(B) One criminal case was registered against the petitioner and others upon the allegations that during the tenure of Commissioner, Municipal Corporation, Satna, in the year 2004-05, certain purchases were made and in the same embezzlement was alleged.

(C) The petitioner was suspended on 26.8.2016 and remained suspended till 25.5.2020.

(D) The charge-sheet was filed against the petitioner and others by Economic Offences Wing (EOW), Bhopal for the alleged offence under Sections 420, 467, 468, 471, 120-B of the IPC and Section 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, in the year 2016.

(E) On 23.3.2023, petitioner was acquitted in the criminal case by the Special Judge (Prevention of Corruption Act) Satna.

(F) The name of the petitioner was not considered for awarding IAS during this period due to pendency of the criminal case. However, during this period the juniors of the petitioner were selected and promoted as IAS.

4. Other facts are disputed. According to the petitioner, the petitioner was found unfit in assessment process for the selection of 2020. The main grievances of the petitioner is that for the period from 1.4.2016 to 13.5.2016, the petitioner remained on leave and suspended on 26.8.2016. Therefore, the ACR/PAR of the petitioner for the said period was NRC (Non Reporting Comments) but the ACR/APAR for the period 13.5.2016 to 26.8.2016 was reduced and petitioner was granted the Grade of Average. However, during this period also the petitioner remained on Earned Leave from 6.6.2016 to 10.6.2016, 13.6.2016 to 29.6.2016 and 11.7.2016 to 12.8.2016. Therefore, the petitioner worked for less than 90 days after excluding the period of earned leave and the ACR for a period of less than 90 days cannot be reduced and it should be reported as NRC.

5. Learned counsel for the petitioner placed reliance on the Circular No.F5- 4/98/9/1 dated 13.1.1999 wherein the procedure for reducing the ACR has been prescribed and it is mentioned that if the concerning officer has not worked for three months or more, the ACR will not be reduced. He further relied on the Circular No.11059/7/2003-AIS (III) dated 11.11.2003 whereby it was prescribed that for the purposes of computing the period of three months under Rule 5(4) of-AIS (CR) Rules, 1970, it has been decided that where an officer has taken an earned leave for a long period which is being defined as more than Signature Not Verified 15 days, the total period spent on leave can be deducted from the total period Signed by: MOHD IRFAN SIDDIQUI Signing time: 12/14/2023 6:25:16 PM 4 spent on any post for the purpose of computing the period of three months. On the strength of the aforesaid provisions, the learned senior counsel appearing on behalf of the petitioner submitted that the ACR for the period 13.5.2016 to 26.8.2016 could not have been reduced and therefore, it should be treated as NRC. It is further argued by the learned senior counsel that the ACR was not duly communicated to the petitioner and, therefore, the petitioner could not challenge the same or submit the representation earlier whereas it was ought to have been reported to the petitioner within a fixed time period, and, therefore, the petitioner filed his representation later on, which was rejected during the pendency of the present petition on 15.5.2023 and petitioner has filed the Review Petition, which is pending. To bolster the arguments on the question of not informing the ACR/PAR to the knowledge of the petitioner, the learned senior counsel has drawn the attention of this Court towards the print out of the SPARROW platform, which is the complete system for the movement of ACR/PAR.

6. According to the print out in respect of other ACR/APAR, the system shows "CR selection to disclose or officer disclosure", but in respect of the disputed ACR for the period from 13.5.2016 to 28.6.2016, the system shows "accepting authority". It is argued that meaning thereby, the same was not brought to the notice of the concerning officer and no opportunity was granted. A work flow based movement of ACR/PAR has been duly described during the course of arguments and it is argued that the petitioner was not having knowledge prior, therefore, the representation could not be submitted earlier.

7. Learned senior counsel further argued that the time limit is fixed for reducing the ACR, grant of grade, review and acceptance and the subjected Signature Not Verified Signed by: MOHD IRFAN SIDDIQUI Signing time: 12/14/2023 6:25:16 PM 5 ACR was not reduced within time or reviewed in time or accepted in time. In fact, it was never accepted and therefore, it is showing the status as "accepting authority". It is further argued that the reporting authority did not found the ACR/PAR for the purpose of grading as the same was for less than 90 working days, therefore, no grade was provided by the reporting authority. However, the reviewing authority has provided the grade "average" and the accepting authority again has not commented on the same, which shows that the said ACR/PAR is incomplete and cannot be considered for any purpose and the same is liable to be treated as NRC.

8. Per contra, learned Deputy Government Advocate appearing for the State has vehemently argued that the present petition is not maintainable in view of the provision of Section 14 of the Administrative Tribunal Act, 1985, which provides that all recruitment and all matters concerning recruitment to any All India Service or to any Civil Service of the Union or a Civil Post under the Union or to a post connected with Defence or in Defence services will be decided by the Central Administrative Tribunal only and as the petitioner has preferred the present petition for treating the ACR of the year 2016-17 as NRC with a sole object to become eligible for the consideration of his name for the grant of IAS, therefore, this petition is not maintainable and liable to be dismissed.

9. Learned Deputy Government Advocate further argued that this Annual Confidential Report was reduced in 2018 but the present petition has been preferred after a period of 5 years and no action was taken by the petitioner during this period to challenge the ACR, therefore, the petition is not maintainable. He further argued that petitioner has already filed the representation and upon the rejection of representation, the petitioner has Signature Not Verified Signed by: MOHD IRFAN SIDDIQUI Signing time: 12/14/2023 6:25:16 PM 6 preferred the Review Petition, which is still pending, therefore, the present petition is not maintainable and is premature. He further argued that the Circular dated 11.11.2003 relied by the petitioner is in respect of Rule 5(4) AIS (CR), Rules 1970 and is not applicable to the officers of State Administrative Services and therefore, the arguments of the petitioner that the period of earned leave of more than 15 days will be excluded for the purpose of counting the period of 90 days, is not acceptable. The similar provisions was introduced by the State Government on 15.2.2022, therefore, the same was not applicable at the time of reducing the ACR of 2016-17 and the same was rightly reduced by the Reporting Authority, Reviewing Authority and Accepting Authority. It is further argued on behalf of the State that the State Government has adopted the portal of SPARROW for the purpose of reducing the ACR/APAR from 1.4.2016 and according to the said portal, first the concerning officer himself has to submit the self appraisal form and click to Reporting Authority thereafter Reporting Authority clicks PAR ID under Access PAR tab to open the form where the Reporting Authority views Basic information and Self Appraisal forms and grades the PAR in Appraisal click to Reviewing Authority, thereafter, Reviewing Authority clicks PAR ID under Access Par tab to open PAR and Reviewing Authority views Basic information self Appraisal & Appraisal forms grades the PAR in Reviewing clicks sent to Accepting Authority and Accepting Authority clicks PAR ID under Access Par Accepting Authority view Basic information Self Appraisal, Appraisal & Reviewing forms and finalizes grade in Accepting form. Thereafter, Custodian click PAR ID under Process tab to open PAR and click Disclose to officer, which is a complete process and could be started by the officer himself.

10. In the present matter, the petitioner himself has uploaded the form and initiated the proceeding for reducing or grading the ACR by submitting the same upon the portal on 30.4.2017. Therefore, the petitioner is estopped from challenging the same due to the lesser period of working the ACR/PAR could not be reduced.

11. Learned Deputy Government Advocate relied upon the Circular F5- 2/2009/1-9 dated 23.7.2014 issued by General Administration Department, which provided that after the receipt of ACR, within a period of one month, the Concerning/Presenting Officer in the case of disagreeing with the grading may submit his representation, otherwise the same will be deemed to be finalized. He further relied on the judgment delivered by the Rajasthan High Court in the matter of Brij Mohan Chauhan vs. High Court of Judicature for Rajasthan, reported in 2015 SCC OnLine Raj 8139, wherein, the Rajasthan High Court has held that, in the absence of impleading the concerning authority as party in the case, the allegations against them cannot be considered and the scope for judicial review in administrative action is extremely limited and confined to the manner in which the decision is taken and not the decision making process. The Rajasthan High Court rejected the representation against the adverse remarks recorded in the Annual Confidential Report of the petitioner.

12. Considering the arguments of the learned counsels and after perusal of the record, I found that a very short point is involved in the present case, which is that whether the ACR/PAR for the period of 13.5.2016 to 26.8.2016 may be considered as ACR or it should be considered as NRC.

13. It appears that the petitioner himself has uploaded the details and a brief description of work along with the achievement etc. on 30.4.2017 for the Signature Not Verified purpose of reducing the ACR or grading the petitioner. However, the reporting Signed by: MOHD IRFAN SIDDIQUI Signing time: 12/14/2023 6:25:16 PM 8 officer i.e. Collector Panna has not exercise the authority to grant any grade to the petitioner and the columns were remained blank. Thereafter, the Reviewing Officer i.e. Commissioner, Indore has granted the grade of average, but the accepting authority once again has not granted any grade, therefore, the ACR was incomplete and no proper procedure was followed. When the Reporting Authority has not granted any grade, the same could not have been reviewed by the Reviewing Authority and when the Accepting Authority has not accepted the grade granted by the Reviewing Authority, the ACR cannot be treated as reduced finally and, therefore, the same cannot be considered as a properly evaluated Confidential Report of the employee.

14. Apart from that, when the Rules and Circulars were silent on the point of calculation of 90 days of work and the same were silent on the issue whether the period of earned leave of more than 15 days should be excluded or not, the guidance could be borrowed from the Circular issued by the Union of India in respect of Rule 5(4) of AIS (CR) Rules, 1970 whereby it was provided that where an officer has taken earned leave for a long period which is being defined as more than 15 days, the total period spent on leave can be deducted from the total period spent on any post for purpose of computing the period of three months. Later on, the State Government has adopted the said Circular vide Circular dated 15.2.2022 but earlier there was no adverse circular in force and therefore, the guidance from the Circular of Union of India ought to have been borrowed and in view of that the said period was not sufficient for the purpose of reducing the ACR and for the purpose of granting any grade to the petitioner as the petitioner remained on leave during this period and worked for only 54 days and the ACR can be reduced after working of atleast 90 days. Therefore, Signature Not Verified Signed by: MOHD IRFAN SIDDIQUI Signing time: 12/14/2023 6:25:16 PM 9 the ACR of the petitioner for the period of 13.5.2016 to 26.8.2016 is contrary to the Circulars and was incomplete and therefore, cannot be treated as valid ACR and should be treated as NRC.

15. So far as the question of maintainability is concerned, the present petitioner has not prayed for any relief against the Union of India or in respect of process of awarding IAS and during the course of argument, the learned senior counsel appearing on behalf of the petitioner has made statement at bar that except the relief of treating the ACR of 2016-17 as NRC, the petitioner is not claiming any other relief and waived the other reliefs, therefore, the petition is maintainable before this Court.

16. Regarding pendency of review petition, it can be considered that the rejection order of the representation was issued just after filing of the present petition to circumvent the results of the petition and the filing of review cannot be treated as alternative remedy.

17. The objection raised by the State that the petitioner failed to file the representation within a period of one month from the date of uploading the ACR, it appears that though it should be raised within a period of one month but there is no barring provision that it cannot be raised later on and, therefore, the failure on the part of the petitioner to raise the objection earlier, will not debar the petitioner from challenging the incomplete ACR by preferring the present petition later on. Even otherwise, the ACR which is found incomplete and wherein the Reporting Authority has not granted any grade at all and Accepting Authority has not accepted the grade granted by the Reviewing Authority, the same cannot be treated as valid ACR and the period of limitation will not be applicable to such ACR.

18. Resultantly, the present petition is allowed. The ACR of the petitioner for Signature Not Verified Signed by: MOHD IRFAN SIDDIQUI Signing time: 12/14/2023 6:25:16 PM 10 the period of 13.5.2016 to 26.8.2016 will be treated as NRC (Non Reporting Comment).

(VINAY SARAF) JUDGE irf.