Madhya Pradesh High Court
Dr. Smt. Archana Bhargava vs The State Of Madhya Pradesh on 24 November, 2014
1
Writ Petition No.10980/2013(S)
24.11.2014
Shri Praveen Dubey, Advocate for the petitioner.
Shri R.P.Tiwari, Govt. Advocate for the respondents No.1
to 3.
Seeking promotion on the post of Professor (Geography), assailing the recommendations of the D.P.C. of the year 2007 granting promotion to the respondent no.4 being junior, this petition has been filed invoking the jurisdiction of this Court under Article 226 of the Constitution of India. The petitioner has also prayed for consideration of his case afresh by a review D.P.C. ignoring the uncommunicated adverse entry of the year 2002 and if found fit she be promoted with all consequential benefits from due date.
After perusal of the pleadings of the petitioner it is apparent that the services of the petitioner are governed by the rules known as M.P. Educational Service (Collegiate Branch) Recruitment Rules, 1990. She possesses the requisite qualifications as prescribed in the said Rules for the purpose of promotion; but her promotion was denied on account of adverse communication of the year 2002, i.e. 'ga'. It is her contention that the said adverse entry has not been communicated, however, it cannot be taken note of by the DPC while considering her case for promotion. In support of such contention reliance has been placed in the judgment of the Apex court in the case of Gurudial Singh Fijji Vs. State of Punjab and others, (1979)2 SCC 368 and Brij Mohan Singh Chopra Vs. State of Punjab, (1987)2 SCC 188. It is her contention that the entries of the year 2001 is of 'A' category. However, for the entry of subsequent 2 year, i.e. 2002, without assigning any reason downgrading is not permissible. Reliance has been placed in the judgment of the Apex court in the case of U.P. Jal Nigam Vs. Prabhat Chandra Jain and others, (1996)2 SCC 363 (para 3) and Dev Dutt Vs. Union of India, (2008)8 SCC 725. It is her contention that the respondent/State has not denied the aforesaid factual position. In such circumstances, the averments made in the writ petition ought to be admitted. To buttress the said contention reliance has been placed in the judgment of the Apex court in the case of Asha Vs. Pt.B.D.Sharma University of Health Science and others, (2012)7 SCC 398 (para 17), R.Hanumaiach Vs. State of Karnataka and others, (2010)5 SCC 203 (paras 19 and 20) and a judgment of this Court in the case of M.P. Prani Raksha Sangh Vs. State of M.P. and others, 2011(2) M.P.L.J. 428. However, it is urged that the relief, as prayed for in this petition, may be granted.
The respondent/State by filing the reply in para 5 has contended that for promotion from the post of Assistant Professor to the post of Professor, requirements have been specified as per Schedule IV of the Rules of 1990. Out of those 5 requirements petitioner do not fulfill the requirement of having the 'good' ACR. It is said that in the year 2002 the adverse entry 'ga' has been recorded in place of good, therefore, she has rightly been denied promotion and the incumbent has rightly been promoted on the post of Professor. In view of the aforesaid it is submitted that the petition filed by the petitioner may be dismissed.
After hearing learned counsel for the parties and on perusal of the averments made in para 5.9, grounds urged in para 3 6a and 6b, it is specifically said that the adverse entry of the year 2002 has not been communicated to the petitioner. The said averment has not been rebutted or denied in the return filed by the respondents. In fact, in the return it is said that the petitioner was having adverse entry of the year 2002, therefore, due to non- fulfilling 5 requirements specified under the Rules, promotion has rightly been denied. As per the judgment in the case of Asha, R.Hanumaiach and M.P. Prani Raksha Sangh (supra), the averments made in the petition if not denied ought to be treated as admitted. Accepting the said analogy, it is to be held that adverse entry of the year 2002 remained uncommunicated to the petitioner and as per the averments made in the return it is the sole basis to deny promotion to her.
In view of the judgment of the Apex court in Gurudial Singh Fijji and Brij Mohan Singh Chopra (supra), it is apparent that the adverse remark remained uncommunicated cannot be taken note of while depriving the petitioner from promotion by the D.P.C., considering the said uncommunicated adverse entry.
In that view of the matter, in my considered opinion, the uncommunicated adverse remark cannot form the basis to deny promotion to the petitioner. In addition to the aforesaid a perusal of the document, annexure P/8, which is the DPC proceedings obtained by the petitioner under the Right to Information, it is apparent that in the year 2001 the petitioner was graded 'A' category while in the year 2002 she was graded Average "ga" category. Such downgrading without assigning the reason is not permissible. It cannot be ignored that in the year 2003 she has again been graded as "A". In that view of the matter considering the law laid down by the Apex court in the 4 case of U.P. Jal Nigam Vs. Prabhat Chandra Jain and others and Dev Dutt (supra), the denial of promotion to the petitioner is arbitrary and discriminatory.
Consequently, this petition succeeds and is hereby allowed. Denial of promotion to the petitioner on account of uncommunicated adverse entry is held illegal. In consequence it is directed that ignoring the uncommunicated adverse entry the case of the petitioner be considered by the review DPC and if otherwise found fit, appropriate recommendations for promotion may be made. As denial of promotion was found not in conformity to law and the incumbent junior to the petitioner has been promoted, however, it is directed that on being found fit, the recommendation for promotion of the petitioner may be made extending all consequential and monetary benefits with effect from the due date. The aforesaid exercise be completed by the respondent/State within a period of six months from the date of communication of this order.
Certified copy as per rules.
(J.K.Maheshwari) JUDGE HS