Madhya Pradesh High Court
N.K.Dwivedi vs The State Of M.P. And Ors on 30 July, 2013
Author: K.K. Trivedi
Bench: K.K. Trivedi
HIGH COURT OF MADHYA PRADESH : JABALPUR.
Writ Petition(S) No.3771/2005
N.K. Dwivedi
Vs
State of M.P. and others.
PRESENT :
Hon'ble Shri Justice K.K. Trivedi. J.
Shri Pratyush Tripathi, learned counsel for the
petitioner.
Shri Rahul Jain, learned Govt. Advocate for respondents
No. 1 and 2.
Shri Manoj K. Rajak, learned counsel for the respondent
No.3.
ORDER
(30.07.2013) The grievance of the petitioner in this petition under Article 226 of the Constitution of India is that he was superseded in the matter of promotion on the post of Additional Director and by order dated 17.3.2005, the respondent No.3 a junior to him was promoted on the said post. It is contended that seniors are to be considered in terms of the provisions of M.P. Public Service (Promotion) Rules, 2002 (hereinafter referred to as Rules for brevity) and in case the rightful consideration of the case of the petitioner would have been done, he would not have been superseded in the matter of promotion. It is contended that only because the downgraded Annual Confidential Reports (hereinafter referred to as ACR for brevity) of the petitioner, in terms of the comments made by the reviewing authority were accepted by the Departmental Promotion Committee (hereinafter referred to as DPC for short), the petitioner was 2 superseded in the matter of promotion. Such a downgrading was not approved by the final accepting authority, therefore, such an act on the part of the DPC was not correct. In terms of the provisions of Rule 7 of the Rules, the DPC was required to assess the grading of an ACR on its own, only if there were conflicting opinion given by the final authority than the initiating or reviewing authority. Since the final authority has duly accepted the gradings of the ACR as done by the initiating authority, power prescribed under Rule 7 of the Rules was not required to be exercised by the DPC and regrading of the ACR of the petitioner was not permissible. This being so, since the petitioner was illegally superseded in the matter of promotion, the writ petition is required to be filed.
2: Contesting the claim made by the petitioner, it is contended by the respondents by filing a return inter alia that the case of the petitioner was considered along with all eligible persons. The DPC meeting was held on 15.2.2005 in terms of the Rules. The criteria laid down under the Rules were made applicable as the case of the petitioner was to be considered for promotion on the basis of merit- cum-seniority. Since the petitioner has not achieved the benchmark assigned as he has not earned the sufficient marks on account of evaluation of his ACRs, he was not found fit for grant of such promotion and, accordingly, the junior the respondent No.3, who achieved the benchmark, was found fit for grant of such promotion and was granted such promotion by the order impugned. There is no illegality committed in the matter of consideration of the case of the petitioner for promotion and as such, the writ petition is liable to be dismissed.
3: The respondent No.3 has filed no return. However, 3 since both the petitioner and the respondent No.3 have superannuated from service by now, it will not be necessary to grant any opportunity of filing the return by respondent No.3 as he is not going to be adversely affected by granting any relief in this writ petition to the petitioner.
4: Heard learned counsel for the parties at length and perused the record.
5: Undisputedly, the merit assessment was required to be done on the basis of ACRs of the incumbent. For the said purpose, the ACRs of the year 1998 to 2003 were taken into consideration. The ACR of the petitioner ending on 31.3.1998 indicates that the petitioner was though initially graded as very good officer by the initiating authority, but subsequently the reviewing authority considered him as good officer and that being so, the matter was referred to the Minister of the department, who was the final accepting authority. The Minister concurred with the opinion expressed by the reviewing authority and, therefore, the ACR of the year 1997-98 of the petitioner was treated as good. No wrong is found in such consideration. However, for the year 1998-99, the ACR written by the competent authority was of very good category. The Secretary of the Chief Minister of the State of Chhattisgarh, who was the then Secretary of the Panchayat and Rural Development Department of Government of Madhya Pradesh, made a comment that since the petitioner was having common knowledge about the working, he was only an average officer and was not required to be graded as very good officer. However, the Minister of the department did not concur with the opinion expressed by the reviewing authority rather categorically recorded the concurrence with the opinion expressed by the initiating authority and herself graded the petitioner as 4 very good officer. Therefore, in fact, in terms of such specific finding, only the grading of the petitioner as recommended by the initiating authority and accepted by the final authority were required to be noted by the DPC. The ACR of the year 1998-99 of the petitioner should have been treated as very good and he should have been awarded the marks for the same.
6: Again the ACR of the year 1999-2000 was written by the initiating authority after examining the work of the petitioner and he was graded as very good. Again the matter was sent for comments before the reviewing authority who was at the relevant time working as Secretary of the Chief Minister of the State of Chhattisgarh, Raipur, but was the Secretary of the department of Panchayat and Rural Development Department of Government of Madhya Pradesh at the relevant when the ACR of the petitioner was initiated. Again same comments were recorded by the said officer and he said that the grading of the petitioner was average. Again the Minister concerned of the department did not agree with the comments of the reviewing authority and accepted the comments of the initiating authority. This being so, this ACR of the petitioner was also required to be treated as very good. The similar was the situation in the ACR of the year 2000-01. By recording the reason, the final authority has concurred with the opinion expressed by the initiating authority, therefore, these ACRs of the petitioner were to be treated as very good and not average or even good as was done by the DPC. The last two ACRs of the petitioner were already graded as very good by all the authorities and, therefore, out of five, the petitioner should have been given grading in all ACR as very good. Had it been done, the petitioner would have obtained 15 marks out of the 5 ACR which is much more than the benchmark fixed by the DPC and should have been declared fit for grant of such promotion.
7: Rule 7 of the Rules prescribes consideration of the ACR grading of an individual officer, who is to be considered for grant of promotion. By assessing the ACRs, DPC is required to assign the marks to each and every ACRs on the basis of its grading. However, if there is a conflict in the gradings given by the initiating authority or reviewing or approving authority, the DPC can regrade the ACRs of individual. In that circumstances, the ACR grading could be changed by one mark either way by increasing or decreasing the number of every such ACRs. Herein in the case in hand, if the ACR gradings of the petitioner are seen, undisputedly on the basis of assessment made by the final accepting authority and the initiating authority, the ACR grading of the petitioner would be very good according to which, he will earn three marks. If there was any discrepancy in making of any such comment by the reviewing authority, the DPC could at the best reduce the grade of the petitioner by one mark and not otherwise. Having acceded to exercise its jurisdiction, the assessment of the ACR of the petitioner was not rightly done by the DPC and he was illegally superseded in the matter of promotion. That being so, looking to the ACR grading of the petitioner, as referred to herein above, this petition is bound to be allowed.
8: Consequently, the writ petition is allowed. The respondents are directed to convene a review DPC for the purpose of reassessing the ACRs of the petitioner for the year 1998-99 to 2003-04 as indicated herein above and to examine whether the petitioner is still fit for grant of 6 promotion or not. In case the petitioner is found fit for grant of such promotion, an order be issued granting him such promotion with effect from the date the same was extended to the respondent No.3 i.e. with effect from 17.3.2005. Needless to say, in case the petitioner is found fit for grant of such benefit of promotion, he would be entitled to all the consequences of said promotion. Since now the petitioner has retired, all the arrears of salary be worked out after his promotion if found fit, revision of pension be done and the said amount be paid to him within a period of four months from the date of receipt of copy of this order.
9: 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.
7HIGH COURT OF MADHYA PRADESH : JABALPUR.
Second Appeal No.1669/2007
Shri Pratap Raghav Ji Bhagwan
Vs
Smt. Krishna and others
JUDGMENT
Post it for /06/2013
(K. K. Trivedi)
Judge