Sanjeev Kumar Tiwari vs State Of Chhattisgarh on 20 September, 2023

[Cites 15, Cited by 0]

Chattisgarh High Court

Sanjeev Kumar Tiwari vs State Of Chhattisgarh on 20 September, 2023

1. The petitioner who was working as Joint Director in the Public Relations Department, Government of Chhattisgarh, Raipur has preferred this writ petition with prayer for quashing of note-sheet Page 2 of 13 dated 07.11.2013 (Annexure P/13) by which the petitioner's representation for upgradation of ACR has been rejected, the petitioner has also challenged the action of the respondents in downgrading of the Annual Confidential Report (ACR in short) for the year 2007-08 and 2008-09, due to which he has been deprived of promotion on the post of Joint Director and has been superseded by his junior on 07.12.2010. He is also assailing the order dated 31.012.2017 by which respondent No. 4 (Umesh Mishra) who is junior to him has been promoted to the post of Additional Director from the post of Joint Director and the order dated 06.04.2018 by which his case seeking review DPC has been rejected.

2. Brief facts as reflected from the records are that the petitioner joined as Assistant Director in the year 1994 through Public Service Commission. After reorganization of State of Madhya Pradesh as State of Madhya Pradesh and Chhattisgarh in the year 2000, he was allocated to State of Chhattisgarh. Petitioner was promoted as Dy. Director on 14.10.2003 whereas Respondent No. 4 was promoted to the post of Dy. Director on 20.10.2006 as such he was junior to him.

3. The petitioner was graded 'Excellent' in ACR from 2003 to 2007 and from 2009 to 2012. But he was graded 'Very Good' in ACR for the years 2007 to 2009 and again in the year 2013-14 he got 'Very Good' which was upgraded to Excellent.

4. The respondents conducted DPC for promotion on the post of Page 3 of 13 Joint Director in the month of October, 2010 for 6 posts wherein 3 posts were for General Category, 1 post for Scheduled Caste Category and 2 posts for Scheduled Tribe Category. The petitioner was senior in the cadre of Dy. Director but vide impugned order dated 07.12.2010 he was superseded by respondent No. 4 and he was promoted to the post of Joint Director. Subsequently, after creation of 2 extra posts of Joint Director, the petitioner was promoted to the post of Joint Director on 01.03.2011. The petitioner preferred an application for providing ACR of 2007-08 and 2008-09 which was provided on 03.03.2012, which shows that the reporting authority had awarded Grade A for the year 2007-08 the same was accepted by the Assessing Officer, however, in the ACR for the year 2008- 09, Reporting Officer awarded A+ grade, the same was downgraded to 'A' by the Assessing Officer without assigning any reason. Moreover, ACR of respondent No. 4 was upgraded from A to A+ quoting good relations with National Media. The petitioner preferred representation on 04.07.2012, however, no decision was taken by respondent No. 1 and after one year, a letter dated 05.08.2013 by which it was communicated to him that the representation shall be decided by the Public Service Commission (PSC). Accordingly, he again filed a representation on 28.10.2013. The record of the case would show that ACR for the year 2013-14 was downgraded from A+ to A without assigning any reason. Therefore, he again submitted a representation on 11.08.2015. Thereafter on 12.04.2016 he sent Page 4 of 13 representation for reconsideration of the adverse ACRs for the year 2007-08 and 2008-09. Pursuant to representation dated 11.08.2015, his remarks in the ACR for the year 2013-14 were upgraded and maintained as A+. His representation for reconsideration of ACRs for the year 2007-08 and 2008-09 is still pending.

5. Learned counsel for the petitioner would submit that petitioner has preferred this writ petition on 29.06.2017. During the pendency of the writ petition his ACRs for the year 2007-08 and 2008-09 were upgraded 'Very Good' to 'Excellent'. Since, his ACRs were upgraded, therefore, he moved an application for consideration of his representation dated 06.11.2007 for conducting review DPC. During the pendency of the petition, respondent No. 4 was promoted to the post of Additional Director. Apart from the factual matrix of the case, the petitioner has referred to judgment of the Hon'ble Supreme Court in case of Dev Dutt v. Union of India {(2008) 8 SCC 725, Abhijit Ghosh Dastidar v Union of India {(2009) 16 SCC 146, Sukhdev Singh vs. Union of India {(2013) 9 SCC 566}, Anil Kumar v. Union of India {(2019) 4 SCC 276}, Pankaj Prakash v. United India Insurance Co. Ltd. {(2020) 17 SCC 590}, R.K. Jibanlata Devi vs. High Court of Manipur {(2023) SCC Online SC 178} and would pray for quashing of the order dated 06.04.2018 (Annexure P/23) by which petitioner's prayer for review DPC has been rejected. This order has been assailed in this writ petition.

Page 5 of 13

6. This Court considering the submission made by the petitioner has passed interim order on 09.08.2017 that any promotion will be subject to the outcome of this Writ Petition.

7. The State has filed their return and in paragraph 11 the State has stated as under :-

"The answering Respondent respectfully submits that the said claim of the petitioner was taken into consideration by the appropriate authorities and it was decided with the same would considered in accordance with the Rules and Regulations of the State Authorities for fixing the seniority of the petitioner from the retrospective period. It is submitted that an opinion was also sought with respect to the claim which was raised by the present petitioner seeking retrospective promotion by conducting review DPC and in view of the opinion which was rendered by the Department concerned, the authorities had come to the conclusion that the case of the petitioner was not fit for consideration and grant of promotion from retrospective effect or for constitution review DPC. Moreover, it is respectfully submitted that the Departmental Promotion Committee had, while promoting other concerned officers over the Petitioner, had objectively and fairly considered the case and that after due consideration the DPC had reached to the conclusion of promoting the Respondent No. 4 over the present Petitioner. The answering Respondents respectfully submit that in view of the categorical finding arrived by the respondent authorities the answering respondents submit that claim of the petitioner for grant of promotion from retrospective effect and for consideration of his case by constitution of review DPC is untenable and the same deserves to be rejected."

8. It has been contended that Respondent No. 4 has rightly been promoted, therefore, petitioner is not entitled to get any relief. It is also contended that case of Devdutt vs. Union of India and others {(2008) 8 SCC 725} is not applicable in the present facts of the case as it is not the case where ACRs were not communicated, therefore, prayed for dismissal of the writ petition.

Page 6 of 13

9. Record of the case would show that notices issued to respondent No. 4 were received unserved, therefore, vide order dated 18.11.2021 notice was served through Dasti Mode, thereafter the respondent No. 4 entered appearance on 21.12.2021, but no reply has been filed by him.

10. I have heard learned counsel for the parties and perused the record.

11. Record of the case would show that the petitioner was not provided ACR for the year 2007-08 and 2008-09, he moved an application on 28.01.2012, thereafter, he was provided ACRs for the said year on 03.03.2012, therefore, it is not in dispute that the ACRs by which the petitioner has been downgraded was not communicated to him though at the belated stage. The record of the case would show that during the pendency of the writ petition the ACRs of 2007-08 and 2008-09 upgraded from 'Very Good' to 'Excellent' on 24.10.2017 vide Annexure P/19. Thus, the rider which was created for not promoting the petitioner in year 2010 has lost its significance as the petitioner's benchmark which was not up to the mark fixed by the DPC due to these ACRs has subsequently removed. The issue only required to be considered by this Court whether memo dated 06.04.2018 Annexure P/23 by which the petitioner's prayer for review DPC has been rejected.

12. Before adverting to the factual matrix of the case this Court has to examine under which circumstances review DPC can be Page 7 of 13 ordered by this Court or not?

13. The review DPC can be held only if the DPC has not taken on material facts and consideration or if certain facts have not been brought to the notice of the DPC or if there have been grave errors in the proceedings of the DPC, review DPC should be convened also to rectify unintentional mistakes, such as :-

(a) where eligible persons were omitted to be considered;

(b) where ineligible persons were considered by mistake;

(c) where the seniority of a person is revised with retrospective effect resulting in variation with the list placed before the DPC;

(d) where some procedural irregularities were committed by the DPC;

(e) where adverse remarks of the ACRs of an officer were toned down or expunged after the DPC has considered his case;

(f) where certain vacancies had not been reported due to error or omission or vacancies that existed at the time of holding DPC.

14. It is well settled position of law that normally the High Court should not interfere in the decision taken by the DPC unless any violation of the rules is made out. The Hon'ble Supreme Court in case of Union of India vs S.K. Goel {(2007) 14 SCC 641} at para 28 has held that interference in the DPC is permissible in rarest to rare cases. Similar views have also been taken by the Hon'ble Supreme Court in various judgments but in the present case the petitioner's ACR for the year 2007-08 and 2008-09 has been upgraded on 24.10.2017 and record of the DPC which was produced before this Court would reveal that ACR which Page 8 of 13 produced by the State along with the return wherein they have considered the ACR for the year 2003-04 to 2008-09. The comparison table between Sanjeev Tiwari the petitioner and respondent No. 4 Umesh Mishra would demonstrate that petitioner was granted less marks on the count that the petitioner has secured only ACR "Very Good" for these two years where as Respondent No. 4 has secured "Excellent" for these two years and the petitioner because of these two ACRs could not get marks higher than respondent No. 4 which has deprived the petitioner to be promoted on the post of Joint Director in the year 2010 itself. The petitioner pursuing his grievances which have been rectified in the year 2017 and despite this the respondents have rejected the prayer of the petitioner for conducting review DPC. This is nothing but arbitrariness on the part of respondents No. 1, 2 and 3.

15. The respondents while rejecting the prayer for the review DPC have relied upon Clause - 58 of Law and Procedure pertaining to appointment and promotion which also provides the contingency when review DPC can be held. This Clause further provides that when the adverse ACRs have been expunged or toned down, then also the review DPC should be conducted.

16. In the present case the ACRs of the petitioner were upgraded which has removed the rider for not considering the promotion in the DPC held in 2010, thus it was incumbent upon the respondents to hold the review DPC. The contentions made by the State that subsequently, the petitioner has been promoted Page 9 of 13 therefore, the damage to the further prospect of the petitioner has been rectified, is not logically correct submission on behalf of the State as it is well settled position of service jurisprudence that if a government servant is deprived of promotion when it is due for promotion his future prospect may be affected adversely to any extent without any fault of the government servant that will also amount to injustice to the deserving eligible candidates for promotion. The State has also taken stand that the petitioner's prayer are review DPC cannot be considered after 13 years, is also not acceptable as in the particular facts and circumstances of the case that the petitioner is raising his grievances from very inception in the year 2010 itself and his grievances have been redressed on 24.10.2017. Thereafter, his representation has been rejected on 06.04.2018, thus, the plea of delay and latches is not available to the respondents. Even otherwise, it is well settled position that the delay and latches for claiming promotion has to be considered on its own facts and no rigid formula can be applied. The Hon'ble Supreme Court in case of Ramchandra Shankar Deodhar vs. State of Maharashtra {(1974) 1 SCC 317} has held as under :-

"10. ...........It may also be noted that the principle on which the Court proceeds in refusing relief to the petitioner on ground of lashes ordeals is that the rights which have accrued to others by reasons of the delay in filing the petition should not be allowed to be disturbed unless there is reasonable explanation for the delay. This principle was stated in the following terms by Hidayatullah, C.J. in Tilokchand v. H. B. Munshi(1) "The party claiming Fundamental Rights must move the Court before other rights come into existence. The action of courts cannot harm innocent parties if their rights emerge by reason of Page 10 of 13 delay on the part of the person moving the Court."

Sikri, J., (as he then was), also restated the same principle in equally felicitous language when he said in' S. N. Bose v. Union of India(2) : "It Would be unjust to deprive the respondents of the rights which have, accrued to them. Each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be set aside after the lapse of a number of years." Here as admitted by the State Government in paragraph 55 of the affidavit in repeal promotions that have been made by the State Government area provisional and the position has not been crystallised to the prejudice of the petitioners. No rights have, therefore, accrued in favour of others by reason of the delay in filing the petition. The promotions being provisional, they have not conferred any rights on hose promoted and they are by their very nature liable to be set a : naught, if the correct legal position, as finally determined, so reqiures. We were also told by the learned counsel for the petitioners, and that was not controverted by the learned counsel appearing on behalf of the State Government, that even if the petition were allowed and the reliefs claimed by the petitioners granted to them, that would not result in the reversion of any Deputy Collector or officiating Deputy Collector to the post of Mamlatdar/Tehsildar; the only effect would be merely to disturb their inter se seniority as officiating Deputy Collectors or as Deputy Collectors. Moreover it may be noticed that the claim for enforcement of the fundamental right of equal opportunity under Art. 16 is itself a fundamental right guaranteed under. Art. 32 and this Court which has been assigned the role of a sentinel on the quay dive for protection of the fundamental rights cannot easily allow itself to be persuaded to refuse relief solely on the jejune ground of laches, delay or the like."

17. It is well settled position of law that though the promotion is not fundamental right but right to consider for promotion is fundamental right as held by the Hon'ble Supreme Court in case of Union of India vs. Hemraj Singh Chauhan {(2010) 4 SCC 290} the Hon'ble Supreme Court has held as under :-

"35. The Court must keep in mind the Constitutional obligation of both the appellants/Central Government as also the State Government. Both the Central Government and the State Government are to act as model employers, which is consistent with their role in a Welfare State.

Page 11 of 13

36. It is an accepted legal position that the right of eligible employees to be considered for promotion is virtually a part of their fundamental right guaranteed under Article 16 of the Constitution. The guarantee of a fair consideration in matters of promotion under Article 16 virtually flows from guarantee of equality under Article 14 of the Constitution.

37. In The Manager, Government Branch Press and Anr. vs. D.B. Belliappa - (1979) 1 SCC 477, a three judge Bench of this Court in relation to service dispute, may be in a different context, held that the essence of guarantee epitomized under Articles 14 and 16 is "fairness founded on reason" (See para 24 page 486).

38. It is, therefore, clear that legitimate expectations of the respondents of being considered for promotion has been defeated by the acts of the government and if not of the Central Government, certainly the unreasonable in-action on the part of the Government of State of U.P. stood in the way of the respondents' chances of promotion from being fairly considered when it is due for such consideration and delay has made them ineligible for such consideration. Now the question which is weighing on the conscience of this Court is how to fairly resolve this controversy."

18. Considering the fact that downgraded ACR which has played vital role in not granting promotion to the petitioner in year 2010 has been rectified by the respondent itself on 24.10.2017. The case of the petitioner falls within the Category-a of circumstances enumerated in Clause- 58 of Procedure for Appointment, Seniority and Promotion instructions, thus, the respondents should have conducted review DPC for promoting the petitioner on the post of Joint Director in the year 2010. Thus, the order dated 06.04.2018 (Annexure P/23) deserves to be quashed and accordingly it is quashed.

19. The writ petition is allowed. It is directed that respondent No. 1 shall conduct review DPC within two months from the date of receipt of copy of this order and since this Court has already directed vide its order dated 09.08.2017 that the promotion of respondent No. 4 to the post of Page 12 of 13 Additional Director will be subject to final outcome of this writ petition, it is directed that now promotion of respondent No. 4 on the post of Additional Director will be subject to outcome of review DPC to be conducted as per the order of this Court.

20.With the aforesaid observation and direction the Writ Petitions is allowed.

Sd/-

(Narendra Kumar Vyas) Judge Deshmukh Page 13 of 13 Head Note bu ifjfLFkfr;ksa esa bl U;k;ky; }kjk iqufoZyksdu gsrq foHkkxh; inksUufr lfefr dh cSBd gsrq funsZf'kr fd;k tk ldrk gSA The circumstances in which review DPC can be ordered by this Court.

Unlock Advanced Research with PRISMAI

Chattisgarh High Court