Madhya Pradesh High Court
Amaresh Shrivastava vs State Of Madhya Pradesh on 7 June, 2021
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
1 W.P.No.4098/2007
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SB: Hon.Shri Justice S.A.Dharmadhikari
W.P.No.4098/2007
Amaresh Shrivastava
Vs.
State of M.P. and another
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Shri D.P.Singh, learned counsel for the petitioner.
Shri Neelesh Singh Tomar, learned Government Advocate
for the respondents.
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ORDER
07/06/2021 Challenge in this petition under Article 226/2007 of the Constitution of India is to the letter dt.26.07.2005 (Annexure P/1), by which the adverse remark has been communicated to the petitioner and also to the communication dt.13.03.2007 (Annexure P/2), by which the representation filed by the petitioner has been rejected.
2. The brief facts leading to filing of this case are that the petitioner at the relevant time was working on the post of Dy.Collector, District Morena and had unblemished service record throughout the career. Vide impugned communication dt.26.07.2005 (Annexure P/1), the petitioner was 2 W.P.No.4098/2007 communicated an adverse entry recorded in the Annual Confidential Report (ACR) for the period from 08.10.2004 to 31.03.2005. Being aggrieved, the petitioner has filed a representation, which was also rejected vide communication dt.13.03.2007 (Annexure P/2) without objectively considering the grounds raised in the representation.
3. Learned counsel for the petitioner contended that the adverse remark has been recorded in total violation of the rules, regulations and guidelines issued by the respondents. Further contention of the petitioner is that the said remark has been recorded without any basis and therefore can not be sustained. Learned counsel submitted that the communication dt.26.07.2005 goes to show that the period taken into consideration is only 5 months and 22 days i.e. less than six months and it is being reported in the letter in the first clause that the work of the petitioner has been found to be "good" for the said period. The quality is "satisfactory, attitude towards the work is "good". Decision making process and ability of taking initiative and inspiration is also "good". Subsequently, in the later part of the letter, following adverse remarks have been made in the Annual Confidential Report of the petitioner :-
3 W.P.No.4098/2007
(i) Attitude towards the work "lacking dedication",
(ii) Initiative "incapable of taking extra responsibility",
(iii) Personnel relation and team work "lacking team spirit",
(iv) Relation with general public "hesitation in meeting general public",
(v) General "Shri Shrivastava has lacked in team spirit during his tenure under him".
Thus, on bare perusal of the letter communicating the adverse remark in the confidential report, the same goes to show that it is highly self contradictory. Therefore, in such circumstances, the adverse ACR of the petitioner is totally unjustified and can not be sustained.
4. Learned counsel in support of his contention has relied upon the judgment of the Apex Court in the case of Sukhdeo Vs. The Commissioner Amravati Division, Amravati and another reported in (1996) 5 SCC 103 and State of U.P. Vs. Yamuna Shankar Mishra reported in (1997) 4 SCC 7. Learned counsel further contended that the adverse remarks communicated to the petitioner are vague and cryptic without any instance of specific failure on the part of the petitioner in respect of these remark. The adverse 4 W.P.No.4098/2007 remarks were recorded in a biased manner. On these grounds, he prays for expunging the adverse remarks recorded in the ACR.
5. On the other hand, learned Government Advocate for the respondents/State submitted that the petitioner has not assailed the ACR for the period 2004 to 2005 in the present writ petition, as such, the writ petition itself is not maintainable. He further submitted that on perusal of the record, it can be seen that the petitioner was found to be seriously lacking dedication, was in capable in taking extra responsibility, was also lacking team spirit, he had hesitation in meeting general public, there was no team spirit, as such, no interference is required. He further contended that the jurisdiction of this Court while exercising its power under Article 226 of the Constitution of India is very restricted. This Court does not sit as an appellate authority. The judicial review is permissible only to the extent of finding whether the process in reaching the derision has been observed correctly. The decision itself can not be subjected to judicial review. In support of his contention, learned Government Advocate has relied upon the judgment of the Apex Court in the case of Amrik Singh Vs. Union of India and others 5 W.P.No.4098/2007 reported in (2001) 10 SCC 424 and M.V.Thimmaiah and others Vs. Union Public Service Commission and others reported in (2008) 2 SCC 119 and State of Orissa Vs. Jugal Kishore Khatua reported in 1997 SCC (L&S) 1768. On the aforesaid basis, he prays for dismissal of the writ petition being devoid of merit and substance.
6. I have heard the learned counsel for the parties and have gone through the record of the case.
7. There can be no dispute with regard to the contention of the learned counsel for the petitioner that before forming an opinion to be adverse, reporting officers writing confidential report should share the information and confront the officer with the same. The opportunity must be given to the official to correct his shortcomings and improve himself. If the officer fails to correct his conduct or improve himself in performance of his duty, thereafter the reporting officer is obliged to record the same in his confidential report. On perusal of the record, it is seen that the adverse entry has been communicated to the petitioner. The observations are based upon the records, which point out the shortcomings of the petitioner. The representation submitted by the petitioner has been duly considered and rejected by 6 W.P.No.4098/2007 the competent authority. No interference in the adverse remarks communicated to the petitioner is called for, specially in the light of the restricted jurisdiction of this Court in the matter of judicial review. While exercising the writ jurisdiction under Article 226 of the Constitution of India, the court does not act as an appellate authority but has limited scope to interfere with the recorded ACR actuated with malafide or statutory provisions having not been followed. In the present case, the assessment of the petitioner has been made based on the record which is dully supported by the related evidence and after giving prior opportunity to the petitioner. The observation of the assessing officer is fully justified and is not based on mere conjectures and surmises, which would bring it within the power of this Court to exercise the judicial review.
8. In view whereof, no ground for interference by this Court in the present case is made out. Accordingly, finding no merit in this petition, the same is hereby dismissed.
No order as to the costs.
(S.A.Dharmadhikari) Judge SP SANJEEV KUMAR PHANSE 2021.06.07 20:07:39 +05'30'