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2012 DIGILAW 264 (CHH)

B. P. SHRIVASTAVA v. STATE OF M. P.

2012-10-08

SATISH K.AGNIHOTRI

body2012
ORDER 1. By this petition, the petitioner seeks quashing of the memo dated 7.12.1986 (Annexure H) and 22.02.1988 (Annexure I), to direct the respondent No. 1 to 3 to promote the petitioner on the post of Senior Agriculture Development Officer (for short 'the SADO') w.e.f. 28.10.1971, a date earlier to the respondent No.7, to fix the seniority above the respondent No.3, to confirm the petitioner alongwith respondents giving a prior notional date, to promote the petitioner as Assistant Director of Agriculture w.e.f. 01.04.1980, from the date his juniors were promoted, and to pay consequential benefits on promotion to the post of SADO w.e.f. 28.10.1971 and as Assistant Director of Agriculture w.e.f. 01.04.1980. 2. The facts, as projected by the petitioner are that he was appointed as Agriculture Assistant (Lower Division) in the respondent department on 25.07.1963. The respondent No.3 to 11 joined on the same post after joining of the petitioner. The petitioner was promoted to the post of Agriculture Assistant (Upper Division) on 02.09.1978 (Annexure A) and transferred to Ambikapur in the year 1964. The applicant submitted various representations for expunging his adverse remarks, in his ACRs. In a similar situation, the adverse remarks in respect of respondent No.7, for the year 1968-69 and 1971-72, was expunged and was given due seniority and also proforma promotion in the cadre of SA DO w.e.f. 28.10.1971, on the ground that his adverse remarks were not communicated to him. 3. The petitioner also made various representations (Annexure F/1 to F/10) against his super-session and for restoring his seniority. A DPC meeting was held for promotion to the post of SADO on 05.08.1971 and the petitioner was not considered for promotion when his juniors were promoted. The DPC could not have taken place as the representations for expunging adverse remarks were still pending consideration with the respondent No.2. The DPC should not have taken into account the adverse remarks for the year 1968 to 1972. The representations were required to be decided within a period of two months from the date of communication of the adverse remarks. However, in the ACRs of the year 1972-73 onwards, the gradings awarded are high. The respondent No.2 vide order dated 07.12.1986 rejected the representations dated 14.12.1985, 20.01.1986 and 05.02.1986. The petitioner again representation to the respondent No.2 on 24.07.1987 (Annexure F/10) for considering his representation on merit. However, in the ACRs of the year 1972-73 onwards, the gradings awarded are high. The respondent No.2 vide order dated 07.12.1986 rejected the representations dated 14.12.1985, 20.01.1986 and 05.02.1986. The petitioner again representation to the respondent No.2 on 24.07.1987 (Annexure F/10) for considering his representation on merit. The respondent No.2, vide communication dated 22.02.1988 (Annexure I) informed the petitioner that he was not found fit for promotion by the DPC and therefore, his representation dated 24.07.1987 was rejected. On account of excellent record, the petitioner was selected for posting on deputation to DRDA project as Assistant Project Officer in Gazetted Rank Class II which is equivalent to the rank of Assistant Director, Agriculture w.e.f. August, 1986. The petitioner was also given a commendation certificate for his performance in the year 1975-76. 4. Shri Saxena, learned counsel appearing for the petitioner would submit that the, then, Deputy Director G.P. Singh was having grudge against the petitioner therefore, he was awarded poor remarks in the ACRs as G.P. Singh had demanded illegal gratification in kind which was not fulfilled by the petitioner. This would also be revealed from the fact that the petitioner was transferred from Surguja to Bilaspur, Which was beyond the jurisdiction of G.P. Singh. His representations for expunging the adverse remarks were pending and in the meantime, the DPC meeting for promotion to the post of SADO was held and the petitioner was not recommended by the DPC, held on 05.08.1971. Shri Saxena would further submit that the ACRs for the year 1972-73 were misfiled in the file of a namesake of the applicant B.P. Shrivastava, working in Jabalpur Division, on account of which resulted in delay of his promotion till 02.09.1978. In case of other similarly situated person i.e. respondent No.7, his adverse remarks were expunged and he was given proforma promotion to the post of SADO w.e.f. 29.10.1971 but the petitioner has been discriminated. Once the adverse remarks for the year 1968 to 1972 were expunged by memo dated 08.11.1985 (Annexure C), the ACRs of the applicant for the year 1968-69 to 1971-72 became without blemish and all the adverse remarks in the ACRs became non-est. The petitioner had worked with sincerity but because of G.P. Singh, who had personal grudge with the petitioner, his ACRs were ruined. On account of the excellent performance of the petitioner, he was sent on deputation to a higher post also. The petitioner had worked with sincerity but because of G.P. Singh, who had personal grudge with the petitioner, his ACRs were ruined. On account of the excellent performance of the petitioner, he was sent on deputation to a higher post also. Thus, the petitioner may be granted all the reliefs, as stated above. 5. On the other hand, Shri Shrivastava, learned Panel Lawyer appearing for the State/respondent No. 1 and 2, would submit that the person namely G.P. Singh, the, then Deputy Director, Agriculture has not been impleaded as a pm1y-respondent in this petition against whom several allegations have been levelled by the petitioner. The transfer of the petitioner from Surguja to Bilaspur was duly approved by the Joint Director, Agriculture, Bilaspur Division. Further, the adverse entries in the ACRs for the year 1968-69 to 1971-72 were expunged not on account of it being found incorrect, but because of non-receipt of the comments of the initiating officer. The juniors to the petitioner were promoted as they were more meritorious than the petitioner. So far as expunging the adverse remarks of respondent No.7, is concerned, it was done on account of non-communicating the adverse entries to him. This petition is hopelessly barred by delay and laches. The petitioner was duly considered in all the OPCs held from 1971 to 1978 but he was not found fit. Only in the year 1978, the petitioner was found fit for promotion and was accordingly promoted. In the review OPC held in the year 1986, even after expunction of the adverse entries of the petitioner, the petitioner was not found fit for promotion, and as such, he was not given any promotion with retrospective date. The representations of the petitioner could not be decided on account of non-receipt of the comments of the Initiating Officer. 6. Shri Shrivastava would further submit that the apprehension of the petitioner that his ACRs wherein good remarks have been entered, have been misfiled with the file of his namesake, B.P. Shrivastava. The same is absolutely false and imaginary. The petitioner achieved his targets as were given by the department, but nothing was exceptional or extraordinary. The petitioner was sent on deputation does not mean that he was having any meritorious qualities but was done on account of the length of service and particularly, on account of the fact that the petitioner himself wanted to go on deputation. The petitioner achieved his targets as were given by the department, but nothing was exceptional or extraordinary. The petitioner was sent on deputation does not mean that he was having any meritorious qualities but was done on account of the length of service and particularly, on account of the fact that the petitioner himself wanted to go on deputation. The petition is having no merit and may be dismissed. 7. Heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto. 8. During the service career of the petitioner for the period from 1968-69 to 1971-72, the adverse remarks made in the service record, after considering his representations, were expunged by order dated 08.11.1986 (Annexure C). The case of the petitioner was considered throughout from 1971, however, he was found suitable only in the meeting held in the year 1978, and accordingly, he was granted promotion. The case of the petitioner was considered ignoring the adverse remarks in his service books which were expunged subsequently. A review OPC was also held on 07.12.1986 in the light of expunction of adverse ACRs remarks for the period 1968-69 to 1971-72. Even after expunction of the said remarks, the petitioner was not found fit for promotion before the year 1978, as a consequence, he was granted promotion w.e.f. that date. 9. The Court has perused the minutes of the review OPC meeting held on 07.12.1986 and it was noticed that the review OPC has considered the ACRs dehors adverse remarks as the same were expunged from the service record of the petitioner. Thus, the contention of the petitioner that the petitioner ought to have been considered prior to that, is not sustainable as in review OPC, he had been considered from the period, he became eligible for promotion. 10. No regulations/circulars or statutory provisions of law have been produced by either side to examine the facts, as aforestated, in accordance with the prevailing statutory provisions. The petitioner cannot claim promotion from a particular date, as right to promotion is neither a legal right nor fundamental right. The petitioner is entitled to be considered for promotion. In the case on hand, case of the petitioner was considered by the DPC regularly and when he was found fit, that very year he was promoted to the higher post. The petitioner is entitled to be considered for promotion. In the case on hand, case of the petitioner was considered by the DPC regularly and when he was found fit, that very year he was promoted to the higher post. Thus, the relief to grant promotion w.e.f. the back date alongwith consequential benefits, cannot sustain, in the above stated facts and circumstances of the case. 11. The Supreme Court, in National Institute of Mental Health & Neuro Sciences Vs. Dr. K. Kalyana Raman & Others (1992) Supp 2 SCC 481 observed that the functioning of the selection committee is neither judicial nor adjudicatory. Selection has been made by the assessment of relative merits of rival candidates. In para 7 of the said decision, the Supreme Court held as under: "7. ......Administrative authority is under no legal obligation to record reasons in support of its decision. Indeed, even the principles of natural justice do not require an administrative authority or a Selection Committee or an examiner to record reasons for the selection or non-selection of a person in the absence of statutory requirement......." 12. In K. Samantray Vs. National Insurance Company Ltd. (2004) 9 SCC 286, the Supreme Court observed as under: "6....... Promotion, as understood under the service law jurisprudence, is advancement in rank, grade or both and no employee has a right to be promoted, but has a right to be considered for promotion......" 13. The petitioner has made allegations of mala fide against one G.P. Singh. The same cannot be examined by this Court in his absence as G.P. Singh has not been impleaded as party respondent. For non-impleadment of G.P. Singh as party respondent, no allegations are acceptable. 14. Applying the well settled principles of law to the facts of the case on hand and in view of the foregoing, this petition is dismissed. 15. No order as to costs. Petition Dismissed.