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2012 DIGILAW 515 (MP)

State of M. P. v. Nisar Ahmed

2012-05-09

BRIJ KISHORE DUBE, S.K.GANGELE

body2012
JUDGMENT Gangele, J. -- 1. The appellant has filed this appeal against the order dated 27.8.2011 passed by learned Single Judge in Writ Petition No.3679/2011(S). 2. The respondent No.1 was appointed as Deputy Collector in the year 1987 after his selection by Madhya Pradesh Public Service Commission. The respondent No.1 was awarded a ACR grading for the year ending 31st March, 2009 “B” (good). The Reporting Officer awarded a grading “A+” (outstanding) to the respondent, it was downgraded by the second reviewing authority as “B” (good). It was not communicated to the respondent No.1. He came to know for the first time the aforesaid fact when the ACR grading was produced in a case i.e. Writ Petition No.1254/2011, which he filed against the ACR grading for the year ending 31st March, 2007. The respondent No.1 submitted a representation against the aforesaid ACR grading on 20.5.2011 and when the representation was rejected then he filed a petition before this Court. The learned Single Judge disposed of the petition with the following directions : “(i) The order dated 8.7.2011 (Annexure P-4) is hereby quashed as having been not passed by the competent authority (Minister Incharge) of the Department of Panchayat and Rural Development. (ii) The competent authority i.e. the approving authority (Minister In-charge of the Department of Panchayat and Rural Development) is hereby directed to decide the representation of the petitioner dated 20.5.2011 made against his down gradation (outstanding to good) made in the ACR of appraisal year 2008-09 without being influenced by the order dated 8.7.2011. (iii) The abovesaid exercise be completed within a period of three weeks from the date of receipt of certified copy of this order.” 3. Against the aforesaid order, the present appellant filed a writ appeal. This Court dismissed the writ appeal. Thereafter, a review petition was filed, which was registered as Review Petition No.9/2012. In the review petition, it was pleaded that on the representation dated 20.5.2011 submitted by the petitioner-respondent No.1, the Principal Secretary, General Administration Department with her noting placed the representation before the Chief Minister and Hon’ble Chief Minister accorded his approval for rejection of the representation. Thereafter, the order dated 8.7.2011 was passed rejecting the representation. In the review petition, it was pleaded that on the representation dated 20.5.2011 submitted by the petitioner-respondent No.1, the Principal Secretary, General Administration Department with her noting placed the representation before the Chief Minister and Hon’ble Chief Minister accorded his approval for rejection of the representation. Thereafter, the order dated 8.7.2011 was passed rejecting the representation. The aforesaid fact was not brought to the notice of the Court, neither before the learned Single Judge nor before the Division Bench in writ appeal, hence, the order of dismissing the writ appeal be reviewed. The Division Bench of this Court vide order dated 23rd February, 2012 allowed the review petition and recalled the order of dismissal of appeal. 4. Learned counsel for the appellant-State has submitted that order of rejection of representation of respondent No.1 in regard to downgrading ACR “good” is in accordance with law, because the representation was placed before the Hon’ble Chief Minister with a noting of the Principal Secretary of General Administration Department and the Hon’ble Chief Minister accorded his approval for rejection of representation. The General Administration Department is the competent department to consider the representation of respondent No.1, hence, the direction issued by the learned Single Judge to the concerned Minister to decide the representation is contrary to law. In support of his contention, learned counsel relied on a judgment of Hon’ble Supreme Court passed in the case of Dev Dutt v. Union of India, reported in (2008)8 SCC 725 . 5. Contrary to this, learned counsel for the respondent No.1 employee has contended that at the relevant time, the respondent was on deputation in Panchayat and Rural Development Department and the Minister of Panchayat and Rural Development was the accepting authority in regard to ACR grading of the respondent employee and he decided the representation of the respondent No.1 and maintained the ACR grading “A+” (outstanding) awarded by the reporting authority, hence, the order passed by the learned Single Judge is in accordance with law. In support of his contentions, learned counsel relied on the following judgments : “(i) State of Uttar Pradesh v. Narendra Nath Sinha [ AIR 2001 SC 3594 ]; (ii) State of U.P. v. Yamuna Shanker Misra [ (1997)4 SCC 7 ]; (iii) Moti Ram Deka v. General Manager, North East Frontiner Railway [ AIR 1964 SC 600 ]; (iv) Smt. Naseen Bano v. State of U.P. [ AIR 1993 SC 2592 ]; (v) State of M.P. v. Rakesh Kumar Gupta [ 1998(2) JLJ 6 ].” 6. The respondent No.1 is an employee of State Administration Service. At the relevant point he was working as Chief Executive Officer, Jila Panchayat, Sidhi. He was awarded a ACR grading in the year ending 31st March, 2009 “A+” (outstanding) by the Reporting Officer i.e. Collector, Sidhi. The President, Jila Panchayat maintained the aforesaid grading, however, the second reviewing officer i.e. Commissioner, Panchayat and Rural Development changed the ACR grading and awarded “B” (good) ACR grading. It was accepted by the Minister of Panchayat and Rural Development. Against the aforesaid grading, the respondent No.1 submitted a representation, which was rejected vide order dated 8.7.2011. The learned Single Judge quashed the aforesaid order on the ground that the Minister Incharge was the accepting authority of ACR grading of respondent No.1 and hence, he has to decide the representation of respondent No.1. 7. The respondent No.1 was on deputation. At the relevant time when the ACR grading was awarded he was working as Chief Executive Officer, District Panchayat, Sidhi. Schedule II of Madhya Pradesh Panchayat Services (Recruitment and General Conditions of Service) Rules, 1999 (hereinafter referred to as “the Rules of 1999”) prescribes the official set up of the Jila Panchayat. Accordance with the aforesaid Rules, the Chief Executive Officer could be posted from Indian Administrative Services or State Administrative Services. The appellant was posted on deputation as Chief Executive Officer, because he is an employee of State Administrative Services. 8. The Panchayat and Rural Development Department issued a circular dated 25.8.2003. The aforesaid circular prescribes procedure for recording ACR grading of Chief Executive Officers of Jila Panchayat. The appellant was posted on deputation as Chief Executive Officer, because he is an employee of State Administrative Services. 8. The Panchayat and Rural Development Department issued a circular dated 25.8.2003. The aforesaid circular prescribes procedure for recording ACR grading of Chief Executive Officers of Jila Panchayat. As per the aforesaid circular, the Collector is the reporting authority, the President of Jila Panchayat is the reviewing authority and the Minister of the Department is the accepting authority and the adverse ACR is to be communicated by General Administration Department in case of Chief Executive Officer, Zila Panchayat. In the circular, there is no role assigned to the General Administration Department or Chief Minister in regard to award of ACR grading. The General Administration Department issued a circular dated 22.4.1995 in regard to disposal of representation against the adverse ACRs. In accordance with the aforesaid circular, the representation of Class I Officer getting the pay-scale of Rs.3700-5000 or above shall be placed before the authority through Principal Secretary. The relevant part of the circular, which is in Hindi is as under : ^^¼3½ izFke Js.kh ds ,sls vf/kdkjh tks :-3700&5000 ;k bl osrueku ds Åij ds osrueku esa fu;qDr gSa] dks lalwfpr izfrdwy Vhdkvksa dks foyksfir djus ds dkj.k eq[; lfpo ds ek/;e ls leUo; esa vkns’kkFkZ izLrqr fd, tk,axs vkSj ‘ks”k izdj.k vFkkZr~ :-3700&5000 ls uhps ds osrueku esa fu;qDr izFke Js.kh ds vf/kdkfj;ksa ls lacaf/kr izfrdwy fVIif.k;ksa dks foyksfir djus ds izdj.k] f}rh; Js.kh ds vf/kdkfj;ksa ds fy, lq>kbZ xbZ mijksDr O;oLFkk ds vuqlkj lacaf/kr foHkkx ds ea=h ds vuqeksnu ls fu;qDr fd, tk,aA** In the aforesaid circular, there is no mention to the fact that the representation of Class I Officers getting the pay-scale 3700-5000 or above against the adverse ACR shall be decided after approval from the Chief Minister. There is a specific circular in regard to procedure for recording the ACR grading of Chief Exeutive Officer, Jila Panchayat. In accordance with the aforesaid circular, the Minister concerned of the Department is approving authority of the ACR grading. There is a specific circular in regard to procedure for recording the ACR grading of Chief Exeutive Officer, Jila Panchayat. In accordance with the aforesaid circular, the Minister concerned of the Department is approving authority of the ACR grading. The respondent No.1 was not awarded any adverse ACR grading by the authority, however, his ACR grading “A+” (outstanding) was changed which was awarded by the Reporting Officer and accepted by the first reviewing authority and changed by the second reviewing authority to “B” (good) and it was accepted by the Minister, then the respondent No.1 submitted a representation and that has been decided by the Minister. Subsequently, the ACR grading awarded by the Reporting Officer “A+” has been maintained by the Minister. The General Administration Department was not the Department of the respondent No.1 under whom he had worked at the relevant time. Hence, it had no opportunity to appreciate the work of the respondent, neither the Chief Minister was in position to appreciate the work of respondent No.1. The work of respondent No.1 was appreciated by the Officers of the Panchayat Department and finally by the Minister concerned. 9. The Hon’ble Supreme Court in the case of State of Gujarat v. Suryakant Chunnilal Shah, reported in (1999)1 SCC 529 , has held as under in regard to writing of ACR and the objects of writing the ACRs : “25. Purpose of adverse entries is primarily to forewarn the Government servant to mend his ways and to improve his performance. That is why, it is required to communicate the adverse entries so that the Government servant to whom the adverse entry is given, may have either opportunity to explain his conduct so as to show that the adverse entry was wholly uncalled for, or to silently brood over the matter and on being convinced that his previous conduct justified such an entry, to improve his performance.” 10. Hon’ble Supreme Court further in Dev Dutta v. Union of India, reported in (2008)8 SCC 725 , has annunciated the principle that every ACR entry of an employee whether it is poor, fair, average or very good awarded by the competent authority be communicated to him so that he can made a representation for its upgrading. The relevant findings of the Hon’ble Supreme Court are as under : “36. The relevant findings of the Hon’ble Supreme Court are as under : “36. 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 upgradation. 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 requires such communication. Article 14 will override all rules or Government orders. 37. We further hold that when the entry is communicated to him the public servant should have a right to make a representation against the entry to the authority concerned, and the authority concerned must decide the representation in a fair manner and within a reasonable period. We also hold that the representation must be decided by an authority higher than the one who gave the entry, otherwise the likelihood is that the representation will be summarily rejected without adequate consideration as it would be an appeal from Caesar to Caesar. All this would be conductive to fairness and transparency in public administration, and would result in fairness to public servants. The State must be a model employer, and must act fairly towards its employees. Only then would good governance be possible.” From the observation of the Hon’ble Supreme Court, it is clear that an employee of civil services has a right of representation in regard to upgradation of ACR entry and upgradation can only be done by the authority competent to award ACR grading to the employee. In the present case, the Minister Incharge of the Department i.e. Panchayat and Rural Development is the final authority or approving authority of ACR grading of Chief Executive Officers, Jila Panchayats. Hence, he is competent to upgrade the ACR grading. The General Administration Department has not been given any power in accordance with the circular dated 25.8.2003 in the matter of awarding ACR grading to Chief Executive Officer, Jila Panchayat. Hence, he is competent to upgrade the ACR grading. The General Administration Department has not been given any power in accordance with the circular dated 25.8.2003 in the matter of awarding ACR grading to Chief Executive Officer, Jila Panchayat. Hence, the General Administration Department or the Hon’ble Chief Minister cannot award a higher ACR grading or upgrade the ACR grading, which was awarded to the Chief Executive Officer of Jila Panchayat on his representation. 11. In paragraph 37 in the case of Dev Dutt (supra), the Hon’ble Supreme Court has observed that the representation in regard to upgradation of ACR grading is to be decided by the authority higher than the one who recorded the entry or who awarded the ACR grading. In the present case, the Reporting Officer was the Collector, the First and Second Reviewing Officers were the President, Jila Panchayat and Commissioner, Panchayat and Rural Development Department and the Accepting Authority was the Minister of the Department. In such circumstances, in our opinion, the learned Single Judge has rightly held that the representation has to be decided by the Minister concerned of Panchayat and Rural Development Department. 12. Consequently, we do not find any merit in this writ appeal. It is hereby dismissed. No order as to costs. .............