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Madhya Pradesh High Court · body

2013 DIGILAW 1191 (MP)

Anil Kesharwani v. State of M. P.

2013-10-01

K.K.TRIVEDI

body2013
Judgment: K.K. Trivedi, J. 1. The grievance of the petitioner in both the writ petitions being non-consideration for promotion, only on account of change of the nature of minor penalty imposed on him and on account of non-communication of Annual Confidential Reports (hereinafter referred to as ACRs for brevity) which are coming in his way, both the matters are heard together and are being decided by this common order. The petitioner a Deputy Director at the relevant time, in Madhya Pradesh Finance Service has approached this Court by way of filing first writ petition contending that he was superseded in the matter of grant of benefit of promotion on the post of Joint Director (Selection Grade) whereas juniors to him were given the said benefit by orders of the respondents. It is contended that earlier a departmental enquiry was initiated against the petitioner, after conducting the said enquiry a punishment of stoppage of two increments of pay without cumulative effect was imposed on him. The petitioner preferred an appeal against the order of penalty which was pending consideration before the competent appellate authority. However, in between the Departmental Promotion Committee meeting (hereinafter DPC for short) was convened and the said DPC considered the penalty and deferred the case of the petitioner saying that he was not to be promoted or granted benefit of the selection grade since the effect of the penalty was in operation. Subsequently, the appeal filed by the petitioner was decided by the competent appellate authority and the penalty of stoppage of two increments of pay was converted into a penalty of censure. It was necessary to review the case of promotion of the petitioner but the same was not done. The petitioner has tried to obtain the information with respect to such consideration under the Right to Information Act, 2005 but as such information was not made available, he was required to file writ petition. It is thus, contended by the petitioner that he was entitled to be granted benefit of promotion on the post of Joint Director (Selection Grade) with all the consequential benefit from the date, the said promotion was granted to his juniors. 2. Contesting the claim made by the petitioner return has been filed by the respondents and they have categorically contended that when the DPC was held on 24-11-2004, the order of punishment issued against the petitioner was in effect. 2. Contesting the claim made by the petitioner return has been filed by the respondents and they have categorically contended that when the DPC was held on 24-11-2004, the order of punishment issued against the petitioner was in effect. This particular fact was recorded by the DPC and therefore, the case of the petitioner was deferred and was not considered. However, a subsequent DPC was held on 24-4-2006, in which, case of the petitioner was considered and as the petitioner was not fulfilling the benchmark criteria, he was not found fit for promotion and the orders accordingly were not issued in his respect promoting him on the post of Joint Director (Selection Grade). It is thus, contended that the entire claim made by the petitioner is misconceived and the petition filed by the petitioner is liable to be dismissed. 3. By filing a rejoinder, the petitioner has disputed such a stand taken by the respondent and has contended that if at all there was an order of penalty, under the instructions of the General Administration Department, Govt. of Madhya Pradesh, the claim of the petitioner was required to be considered and the recommendations were to be kept in the sealed cover. There was no question of differing the consideration of the case of the petitioner as was done by the DPC on 24-11-2004. It was further contended that the subsequent DPC was also not properly convened inasmuch as the ACR of the petitioner were coming in his way were taken into consideration though the same were not communicated to the petitioner. If at all the ACRs were coming in the way in the matter of promotion, such ACRs were required to be communicated to the petitioner and after deciding the representation made against such ACRs action was required to be taken by the respondents to consider the case of the petitioner. In view of the law laid down by the Apex Court in the various cases, it was contended that in such circumstances where there was no communication of ACRs, the same were liable to be ignored and previous years ACRs were to be taken into consideration. Thus, it is again contended that consideration done by the DPC was not just and proper, therefore, respondents were liable to be commanded to reconsider the case of the petitioner for promotion on the aforesaid post. 4. Thus, it is again contended that consideration done by the DPC was not just and proper, therefore, respondents were liable to be commanded to reconsider the case of the petitioner for promotion on the aforesaid post. 4. By subsequent writ petition, the petitioner has assailed the orders passed on the representation made by the petitioner against those ACRs which were though treated as average but have come in his way for promotion. It is contended by the petitioner that in the representation, reasons were assigned as to why such down grading was done deliberately in the ACRs of the petitioner by the initiating officer and as such, mere approval of the ACRs grading by the reviewing authority and the final authority will not entail the ACRs as average. Proper grading of the ACRs was required to be done by the independent authority. The self appraisal report submitted by the petitioner was required to be taken note of and such representation was required to be decided. However, mechanical representation made by the petitioner was rejected by order dated 25-4-2009 and therefore, the subsequent writ petition was required to be filed. There is no return filed by the respondents in this writ petition but since such a claim is also required to be adjudicated by common order, both the writ petitions are heard together. 5. After hearing both the learned counsel for the parties at length and after going through the record and examining the same in terms of the circulars issued by the State Government way back in the year 1975 it is seen that, it was necessary on the part of the DPC to consider the case of the petitioner even when the order in appeal filed against the order of penalty was not passed by the competent appellate authority. The circular specifically laid down the condition that in such cases, the recommendations made by the DPC are required to be kept in the sealed cover and are required to be given effect to, after passing an order in appeal against order of penalty. This aspect is clear from paragraph-8 of the proceedings of DPC dated 24-11-2004, therefore, only on this account alone, it is necessary to direct the respondents to review the claim of the petitioner for grant of such promotion. This aspect is clear from paragraph-8 of the proceedings of DPC dated 24-11-2004, therefore, only on this account alone, it is necessary to direct the respondents to review the claim of the petitioner for grant of such promotion. Surprisingly, it is seen that the DPC considered the cases of those persons who were facing departmental enquiry or criminal prosecution and their recommendations were kept in the sealed cover whereas the claim of the petitioner was not at all considered by the DPC of the year 2004. This was not permissible. The second aspect of the matter is that once the order was passed by the competent appellate authority and the order of penalty was set aside and replaced by a penalty of censure, again in terms of the circular so issued by the respondent/State on 30-6-1994, the respondents were required to hold a review DPC for considering the case of the petitioner afresh treating the penalty of censure as a minor penalty which would not come in the way of the petitioner for consideration in the matter of promotion in terms of the aforesaid circular. Therefore, it is necessary on the part of the respondents to hold a review DPC and to reconsider the case of the petitioner as was done by the DPC of the year 2004 adopting the similar norms which were adopted by the said DPC. 6. It is not in dispute that the DPC of the year 2004 was convened in terms of the provisions of Madhya Pradesh Public Service (Promotion) Rules 2002 (hereinafter referred to as 'Rules of 2002'). The said Rules specifically prescribed that the consideration would be done on the basis of previous five years ACRs. Previous five years means before the calender year in which the particular DPC was held. The Calender Year as defined in the Rules of 2002 is from 1st January of each year upto 31st of December of the said year. Therefore, the DPC was required to take into consideration the ACRs upto 1st of January, 2004. That being so, only such ACRs were to be taken into consideration which were of the immediate previous 5 years. The DPC was required to take into consideration the ACRs of the year ending 31st March, 1999 to 31st March, 2003. Therefore, the DPC was required to take into consideration the ACRs upto 1st of January, 2004. That being so, only such ACRs were to be taken into consideration which were of the immediate previous 5 years. The DPC was required to take into consideration the ACRs of the year ending 31st March, 1999 to 31st March, 2003. It is seen from the chart produced along with the Writ Petition No. 5839/2009 that the ACRs of the petitioner for the year ending 31st March, 2001 was not available. The ACR of the year 2002 was average. This particular average ACR was not communicated to the petitioner as it was not treated as adverse. In view of the law laid down by the Apex Court in the case of U.P. Jal Nigam and others v. Prabhat Chandra Jain and others, AIR 1996 SC 1661 and U.P. Jal Nigam v. S.C. Atri and another, AIR 1999 SC 3362 the same was to be treated as adverse. This particular aspect is reiterated by the Apex Court in the case of Dev Dutt v. Union of India and others, AIR 2008 SC 2513 . It is categorically held by the Apex Court that those ACRs which are coming in way in the matter of consideration of promotion, if are not communicated are not to be taken into consideration. The DPC, thus, would ignore the ACR which was not available, and which at all is not made available and the ACR which was treated as average but was not communicated to the petitioner. The DPC will consider the previous years ACRs in terms of Rules of 2002. 7. This has to be seen that the representation made by the petitioner against the ACRs was entertained in a cryptic manner and has been decided without application of mind. In fact the respondents/authorities while considering the representation of the petitioner against such an average entry was required to see the previous service record of the petitioner, his ACR Gradings of last years and should have taken into consideration the self appraisal report submitted by him for assessment of his grading for the work of particular year. This was necessary because the specific allegations were made by the petitioner against that officer who has initiated the ACR of the petitioner for the particular year. This was necessary because the specific allegations were made by the petitioner against that officer who has initiated the ACR of the petitioner for the particular year. Since this has not been done in appropriate manner and only on account of a circular of the General Administration Department of State Government, the representation of petitioner is rejected, such an order of respondents is not sustainable and is liable to be quashed. Accordingly, order dated 25-4-2009 challenged in W.P. No. 5839/2009 is hereby quashed. 8. For the discussions made hereinabove, the writ petitions are allowed. The respondents are directed to convene a review DPC and to consider the case of the petitioner in terms of the norms prescribed by the DPC dated 24-11-2004, ignoring the ACRs which were not available or which were average and were not communicated to the petitioner. Let the aforesaid exercise be completed within a period of 4 months from the date of receipt of certified copy of the order passed today. The similar exercise would be done in respect to the DPC dated 24-4-2006, in case after over all consideration, the petitioner is not found fit for grant of benefit of promotion by the DPC of the year 2004. Needless to say that in-case the petitioner is found fit for grant of benefit of promotion on the post of Joint Director (Selection Grade) on assessment of his merit, he would be entitled to all the consequential benefits of such promotion. The writ petitions are disposed of accordingly. The writ petitions are allowed to the extent indicated hereinabove. There shall be no orders as to costs.