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Madhya Pradesh High Court · body

2008 DIGILAW 858 (MP)

OM PRAKASH LASHKARI v. STATE OF M P

2008-07-11

SHANTANU KEMKAR

body2008
Judgment ( 1. ) BEING aggrieved of his supersession and promotion of his juniors including the third respondent from the post of Lower Division Clerk to the post of Upper division Clerk vide order dated 21-7-94 (Annexure A-4), the petitioner had filed O. A. No. 546/96 before the M. P. State Administrative Tribunal (for short the Tribunal ). The said O. A. was disposed of by the Tribunal vide order dated 11-2-97 (Annexure A-12) directing the respondents to consider the representation made by the petitioner with liberty to the petitioner to approach the Tribunal afresh if aggrieved by the decision of the respondents on his representation. ( 2. ) PURSUANT to the decisions of the Tribunal the respondents considered the petitioners representation against his supersession and promotion of his juniors including the third respondent and rejected the same vide order dated 17-5-97 (Annexure A-15 ). Feeling aggrieved the petitioner had approached the Tribunal in O. A. No. 637/97. On abolition of the Tribunal the said O. A has been received by this Court for its adjudication in accordance with law. ( 3. ) THE case of the petitioner is that initially he was appointed in the labour Department of the State Government on the post of Peon on 5-1-97. He was promoted from the post of Peon to the post of Lower Division Clerk on 16-12-83. The third respondent was appointed on the post of Lower Division clerk on 26-12-83 and being junior to him his name was below the name of the petitioner in the seniority list. ( 4. ) IN the meeting of the Departmental Promotion Committee held on 21-2-94 the criteria fixed for promotion was that the employees who are falling in the zone of consideration for promotion from the post of Lower Division clerk to the post of Upper Division Clerk should not have more than one gha (poor) in the preceding five years ACRs. ( 5. ) ACCORDING to the petitioner the Departmental Promotion committee considered the preceding five years ACRs of the petitioner and rejected the petitioners claim for promotion on account of two gha in his preceding five years ACRs. He stated that so far as the adverse ACR of gha for the year 1989-90 the same was never communicated to him. ( 5. ) ACCORDING to the petitioner the Departmental Promotion committee considered the preceding five years ACRs of the petitioner and rejected the petitioners claim for promotion on account of two gha in his preceding five years ACRs. He stated that so far as the adverse ACR of gha for the year 1989-90 the same was never communicated to him. So far as the adverse ACR gha recorded for the year 1990-91 the same though was communicated to him vide letter dated 26-10-91 (Annexure A- 2) calling upon him to submit representation against it, but the representation submitted by him on 22-11-91 (Annexure A-3) remained undecided. ( 6. ) THE respondents filed return and produced the record of the departmental Promotion Committee for perusal at the time of final hearing. According to the respondents the petitioner did not fulfil the criteria for promotion as there were two gha in his preceding five years ACR. As regards the adverse entry of gha for the year 1989-90 it has not been disputed by the respondents that the adverse entry for this year was not communicated to the petitioner. So far as the petitioners representation in regard to the adverse entry of the ACR of the year 1990-91 it has been stated that in the absence of communication on their part about the decision on his representation the petitioner should have presumed that the representation must have been rejected. ( 7. ) HEARD learned Counsel for the parties. ( 8. ) FROM the averments made by the parties and the record produced at the time of hearing it is very clear that though the adverse remarks for the year 1989-90 was taken into consideration by the Departmental Promotion committee for rejection of his claim for promotion but the said adverse entry was never communicated to the petitioner. It is also very clear that the adverse entry for the year 1990-91 was though communicated to the petitioner but his representation (Annexure A-3) to the said adverse entry remained undecided still it was also taken into consideration by the Departmental Promotion committee for not holding him suitable for promotion. It is also very clear that the adverse entry for the year 1990-91 was though communicated to the petitioner but his representation (Annexure A-3) to the said adverse entry remained undecided still it was also taken into consideration by the Departmental Promotion committee for not holding him suitable for promotion. Thus the decision of the departmental Promotion Committee to reject the petitioners claim for promotion is based upon two years adverse entries one of which was not communicated and other though communicated but representation against it was not decided before consideration of his case for promotion by the departmental Promotion Committee. ( 9. ) IN the case of Madan Kumar Gautam Vs. State of M. P. and others, 1985 JLJ783, a learned Single Judge of this Court quashed the adverse remarks made in the petitioners character roll by observing that the representation submitted by the petitioner against the adverse entries remained unattended for sufficiently long period. It was further observed that the representation against adverse entries requires to be attended with promptness. In the case of Gurdial singh Fijji Vs. State of Punjab and others AIR 1979 SC 1622 , the Supreme Court has held that it is well settled that in accordance with the rules of natural justice, an adverse report in a confidential roll cannot be acted upon to deny promotional opportunities unless it is communicated to the person concerned so that he has an opportunity to improve his work and conduct or to explain the circumstances leading to the report. Such an opportunity is: not an empty formality, its object, partially, being to enable the superior authorities to decide on a consideration of the explanation offered by the person concerned, whether the adverse report is justified. In the case of Devdutta Vs. Union of India and others, 2008 AIR SCW3486, the Supreme Court in Paragraphs 19, 20, 24 and 39 held thus:- Para 19. "in our opinion, every entry in the ACR of a public servant must be communicated to him within a reasonable period, whether it is a poor, fair, average, good or very good entry. Union of India and others, 2008 AIR SCW3486, the Supreme Court in Paragraphs 19, 20, 24 and 39 held thus:- Para 19. "in our opinion, every entry in the ACR of a public servant must be communicated to him within a reasonable period, whether it is a poor, fair, average, good or very good entry. This is because non-communication of such an entry may adversely affect the employee in two ways : (1) Had the entry been communicated to him he would know about the assessment of his work and conduct by his superiors, which would enable him to improve his work in future, (2) He would have an opportunity of making a representation against the entry if he feels it is unjustified, and pray for its up gradation. Hence non-communication of an entry is arbitrary, and it has been held by the Constitution Bench decision of this Court in Maneka Gandhi Vs. Union of India (supra), that arbitrariness violates Article 14 of the Constitution. " Para 20. "thus it is not only when there is a benchmark but in all cases that an entry (whether it is poor, fair, average, good or very good) must be communicated to a public servant, otherwise there is violation of the principle of fairness, which is the soul of natural justice. Even an outstanding entry should be communicated since that would boost the morale of the employee and make him work harder. " Para 24. "it may be mentioned that communication of entries and giving opportunity to represent against them is particularly important on higher posts which are in a pyramidical structure where often the principle of elimination is followed in selection for promotion, and even a single entry can destroy the career of an officer which has otherwise been outstanding throughout. This often results in grave injustice and heart-burning, and may shatter the morale of many good officers who are superseded due to this arbitrariness, while officers of inferior merit may be promoted. " Para 39. This often results in grave injustice and heart-burning, and may shatter the morale of many good officers who are superseded due to this arbitrariness, while officers of inferior merit may be promoted. " Para 39. "in the present case, we are developing the principles of natural justice by holding that fairness and transparency in public administration requires that all entries (whether poor, fair, average, good or very good) in the Annual Confidential Report of a public servant, whether in civil, judicial, police or any other State service (except the military), must be communicated to him within a reasonable period so that he can make a representation for its up gradation. This in our opinion is the correct legal position even though there may be no Rule G. O. requiring communication of the entry, or even if there is a Rule G. O. prohibiting it, because the principle of non-arbitrariness in State action as envisaged by Article 14of the Constitution in our opinion requires such communication. Article 14 will override all rules or Government orders. " ( 10. ) HAVING regard to the aforesaid legal position and the fact that the petitioner has been denied promotion on the basis of one adverse entry gha (poor) which was never communicated to him and on the basis of other adverse entry gha (poor) which though was communicated to him but his representation against the same was not decided in my considered view the decision of the Departmental Promotion Committee denying promotion to the petitioner and the impugned order dated 17-5-97 (Annexure A-15) cannot be sustained as the same are violative of principle of fairness which is the soul of natural justice. ( 11. ) IN the circumstances the impugned order dated 17-5-1997 (Annexure A-15) is quashed. The respondent Nos. 1 and 2 are directed to communicate the entry gha pertaining to the year 1989-90 to the petitioner within a period of one month from the date of receipt of copy of this order. On being communicated the petitioner may make representation to it if he so desires within a period of one month thereafter. The said representation as well as the representation Annexure A-3 in regard to the adverse entry for the year 1990-91 shall be decided by the respondents within two months thereafter. On being communicated the petitioner may make representation to it if he so desires within a period of one month thereafter. The said representation as well as the representation Annexure A-3 in regard to the adverse entry for the year 1990-91 shall be decided by the respondents within two months thereafter. If on consideration the petitioner is found eligible for consideration as per the criteria fixed in the DPC held on 21-2-94 the petitioners case shall be considered for promotion retrospectively by the Departmental Promotion Committee within two months thereafter. In case the petitioner is promoted for the post of Upper division Clerk pursuant to the decision as may be taken he shall be extended the consequential benefits flowing from such order of promotion. ( 12. ) THE petition stands allowed to the extent indicated above. No order as to costs.