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2005 DIGILAW 1287 (MP)

M. S. Aswal v. State of M. P.

2005-12-15

A.K.SHRIVASTAVA

body2005
ORDER 1. This petition was originally filed before the M.P. State Administrative Tribunal at Jabalpur long back on 10.12.1990. However, on account of abolition of the Tribunal, this petition has been received by this Court for its adjudication: 2. By challenging the impugned order Annexure A-4 dated 5.10.1990 by which the respondent No.2 was promoted to the post of Assistant Commissioner (Excise), learned counsel for the petitioner has submitted that if averments made in paras 2, 3 and 7 of the return where the averments of petitioners made in para 6.6 of the memorandum of petition have been replied are read in proper perspective, it can safely be said that petitioner fulfills the promotion criteria as laid down by the DPC for promotion to the post of Assistant Commissioner (Excise). 3. On going through the averments made in para 6.6 of the memorandum of petition it is gathered that there is a specific pleading that the alleged adverse ACRs of the years 1986-87 and 1987-88 were never communicated to the petitioner and they were not in his knowledge and no opportunity was provided to him to make representation against those adverse ACRs. On going through the averments made in para 70 the return which pertains to the reply of para 6.6 of the petition, no where it is gathered that the adverse ACRs of these years were ever communicate to the petitioner. It is well settled in law that an employee cannot be denied promotion on the basis of those adverse ACRs which were never communicated to him. In that regard decision of Division Bench of this Court in the case of Jagat Narayan Tiwari v. State of M.P. and others [ 1989 JLJ 536 = 1988 MPLJ 745 ] is quite relevant. Since adverse ACRs of the years 1986-87 and 1987-88 were never communicated to the petitioner, the view of this Court is that the DPC wrongly denied promotion to the petitioner by considering those un-communicated adverse ACRs. Even otherwise the case of petitioner fits in the slot of the criteria fixed by the DPC. In para 2 of the return the criteria which was fixed by the DPC has been reproduced and it would be apposite to re-write that criteria which reads thus:- (i) Integrity should be beyond doubt. Even otherwise the case of petitioner fits in the slot of the criteria fixed by the DPC. In para 2 of the return the criteria which was fixed by the DPC has been reproduced and it would be apposite to re-write that criteria which reads thus:- (i) Integrity should be beyond doubt. (ii) Out of the last 5 years, performance during the three years should be at least good (B), or above but should be generally so during the latest two years. (iii) If performance during any of the last 5 years is poor, it should be offset by one very good (A) or outstanding (A+) entry. On going through para 3 of the return it is gathered that "B" was awarded to the petitioner in the year 1983-84, "A", in the year 1984-85 and 198586 and "C" in the years 1986-87 and 1987-88. If Clause (iii) is read in proper perspective, one can easily say that the petitioner was wrongly denied the promotion because the petitioner was having two "At as he was graded "A" in the years 1984-85 and 1985-86. Thus "C" of the years 1986-87 and 1987-88 became offset on account of grading of two "A" in the years 1984-85 and 1985-86. 4. Thus, I am of the view that the candidature of the petitioner for promoting him on the post of Assistant Commissioner (Excise) has wrongly been denied to him. The respondent No.1 is hereby directed to convene a review DPC to consider the case of petitioner for his promotion on the post of Assistant Commissioner (Excise) on the basis of this decision, w.e.f. 5.10.1990 when respondent No.2 was promoted. It has been informed that during the pendency of the petition the petitioner has retired. The respondent No.1 is hereby directed that after convening review OPC if the petitioner is found fit for promotion, notional promotion order may be passed with all consequential benefits including re-fixation of pension as well as retira1 dues. Let this exercise be done on or before 31.5.2006. 5. This petition is allowed with no order as to costs.