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Madhya Pradesh High Court · body

2013 DIGILAW 315 (MP)

N. P. Tiwari v. State of M. P.

2013-03-07

K.K.Trivedi

body2013
ORDER 1. This writ petition under Article 226 of the Constitution of India, has been filed challenging the correctness of the order dated 20.8.2008, by which it is communicated to the petitioner that after holding a Review Departmental Promotion Committee and considering the case of the petitioner, he is found unfit for promotion on the post of Block Development Officer. In fact, this is a second round of litigation before this Court. 2. Facts giving rise to filing of this petition in brief are that the petitioner while was in service, was put to departmental action in the year 1997. A Departmental Promotion Committee meeting was convened on 26.2.1998 and though the case of the petitioner was considered, but he was not promoted on the post of Block Development Officer. At the relevant time, the petitioner was working as Block Extension Officer. Juniors to the petitioner were promoted and, therefore, it led to filing of an Original Application No.2810/1998 before the M.P. Administrative Tribunal, Jabalpur. The said petition was entertained, notices were issued to the respondents and the same remained pending before the Tribunal when a decision was taken by the State Government to close down the Tribunal. As a result of the closure of the Tribunal, the original application came on transfer to this Court where it was registered as Writ Petition No.13008/2003. The petition came up for hearing before this Court on 15.12.2006. Considering that the petitioner has not impleaded the juniors who have superseded him in the matter of promotion in the petition, and as none was present for the petitioner to prosecute the petition, the same was dismissed on 15.12.2006. 3. The petitioner preferred a writ appeal against the said order being Writ Appeal No.468/2007. The Division Bench of this Court considered the fact, taken note of the submissions made by learned counsel appearing for the petitioner to the extent that after completion of the departmental enquiry against the petitioner and his complete exoneration in the said enquiry, his case for promotion was not reviewed. However, the aspect whether the case of the petitioner was considered in the Departmental Promotion Committee of the year 1998 or not, was not considered and it was directed to hold a Review Departmental Promotion Committee to reconsider the case of the petitioner in appropriate manner. However, the aspect whether the case of the petitioner was considered in the Departmental Promotion Committee of the year 1998 or not, was not considered and it was directed to hold a Review Departmental Promotion Committee to reconsider the case of the petitioner in appropriate manner. It is the case of the petitioner that this order was brought to the notice of the authorities, however, they have not considered the case of the petitioner in appropriate manner and by the order dated 20.8.2008 again it is communicated that the petitioner is not found fit for such promotion from the date the juniors to the petitioner were promoted. It is contended by learned counsel for the petitioner that if the claim of the petitioner was not considered for promotion in appropriate manner, the fundamental right available to the petitioner to be considered for promotion was violated and, therefore, this second round of litigation was required to be brought to this Court. In view of the aforesaid submissions, the petitioner has prayed for the following reliefs : “(i) This Hon’ble Court may kindly be pleased to call for the record of DPC dated 26.2.1998 for kind perusal and after perusal of the same the Hon’ble Court may kindly be pleased to direct the respondents to promote the petitioner from the post of Development Extension Officer to the post of Block Development Officer from the date on which his juniors have been promoted. (ii) Any other suitable relief deemed fit in the facts and circumstances of the case may also kindly be granted together with the cost of this petition. (iii) The order passed by the respondent on 20.8.2008, same may be quashed.” 4. Refuting the allegations made by the petitioner, a return has been filed. It is contended by the respondents that the claim of the petitioner was already considered in appropriate manner in DPC of 1998 and he was not found fit for promotion. However, after the order was passed by the Division Bench of this Court, a Review Departmental Promotion Committee meeting was held on 11.4.2008 and the same criteria as laid down by the Departmental Promotion Committee of 26.2.1998 were adopted for consideration of the case of the petitioner. In terms of the criteria laid down since the petitioner was not found fit for grant of such promotion, the impugned order was issued and communicated to the petitioner. In terms of the criteria laid down since the petitioner was not found fit for grant of such promotion, the impugned order was issued and communicated to the petitioner. Thus, it is contended that the petitioner has already been considered once and the review of the same was already held after the order of this Court, therefore, the petitioner is not entitled to any relief. This Court has directed to produce the record of the Departmental Promotion Committee which is produced before this Court. 5. Heard learned counsel for the parties at length and perused the record. 6. The Departmental Promotion Committee record of the year 1998 indicates that the case of the petitioner was considered in the Departmental Promotion Committee held on 26.2.1998. The Departmental Promotion Committee formulated the procedure and provisions for consideration of the cases in following manner : (i) The cases were considered in terms of the provisions of Madhya Pradesh Panchayat and Rural Development Department Gazetted Recruitment Rules, 1988 read with M.P. Public Services (Reservation in Promotion and Extension of Zone of Consideration) Rules, 1997 on merit-cum-seniority basis. (ii) The seniority list showing the position as on 1.4.1997 was taken into consideration. The qualifying services was treated to be one year on the post of Block Extension Officer as on 1.1.1997. Criteria : The criteria for consideration of the cases and preparation of fit list was divided into two clauses in the following manner : (a) (i) Integrity should be beyond the doubt. (ii) Five years annual confidential reports were to be taken into consideration and the average grading of same should be minimum of the Good category. There should not be any adverse remark and for the last two years annual confidential reports, the grading must be of Good category. (b) (i) Assessment of the annual confidential reports was to be done in the manner indicated in Schedule I. (ii) If the annual confidential report of any year is not available, the annual confidential reports of previous year upto last two years were to be taken into consideration. (iii) The annual confidential report if not graded by the concern authority, would be graded by the Departmental Promotion Committee. (iii) The annual confidential report if not graded by the concern authority, would be graded by the Departmental Promotion Committee. (iv) In case adverse entry is recorded, but is not communicated or if communicated and represented, but the representation is not decided, the adverse part of the entry would be ignored and rest of the entry would be graded by the Departmental Promotion Committee. In case the time is available to decide the representation against the adverse annual confidential report, consideration of the case of such an officer was to be differed and was to be considered by circulation. (v) Select list will be prepared in accordance to the marks obtained in the annual confidential reports in decreasing order. It was indicated that there were in all 155 vacancies. 7. After preparing Schedule I where the marks were awarded for assessment of the merits on the basis of gradings in the annual confidential report (hereinafter referred to as ACR for brevity), the Departmental Promotion Committee proceeded further to consider the cases of individuals. It will not be out of place to mention here that in Schedule I appended to the proceedings, for an excellent entry in ACR 4 marks were to be granted, for Very Good 3 marks were to be granted, for Good 2 marks wee to be granted and for average one mark was assigned. It was said in the said Schedule that if an employee has obtained 19 marks or above will be treated as Excellent Officer. The officers who have obtained 13 to 18 marks will be graded as Very Good. Again it was recorded that last two years ACRs must be of Good category. However, if the grading was done on the basis of marks obtained in the ACR, average of the last two years’ACRs must be Good or not, or will it satisfy such a condition of at least Good remark for the last two years ACRs or not, was not specifically mentioned. The case of the petitioner was also considered in the said Departmental Promotion Committee as he too was in the zone of consideration, but the name of the petitioner was mentioned in the list of those officers who were not found fit. The case of the petitioner was also considered in the said Departmental Promotion Committee as he too was in the zone of consideration, but the name of the petitioner was mentioned in the list of those officers who were not found fit. The only reason recorded was that in the ACR of the year 1996 of the petitioner, there was an average grading as per the assessment of the Departmental Promotion Committee. This being so, the facts as have come on record indicates that the case of the petitioner was considered, but he was not found fit for promotion on account of ACR of the year 1996. 8. It appears from the record that the petitioner was communicated the adverse remark recorded in the ACR of the year 1996. The said entry is not placed on record and, therefore, it is not possible to examine the same. However, a representation was made by the petitioner wherein it was contended by him that the adverse entry was recorded against the petitioner because of a complaint made of which an enquiry was conducted by the Sub-Divisional Officer/Sub-Divisional Magistrate Maihar, District Satna, and a report was submitted by the said officer for consideration. However, the adverse remark recorded in the ACR of the year 1996 was not expunged from the confidential report of the petitioner. This being so, it is clear that on the date the case of the petitioner was considered, the adverse remark recorded in his confidential report of the year 1996 was neither expunged nor the decision was taken on the representation made by the petitioner. However, as was recorded by the Division Bench of this Court in the writ appeal filed by the petitioner those aspects were never considered by the respondents, but when the reply was filed to the original application, only this much was said that the adverse remark recorded in the ACR of the year 1996 were excluded while considering the claim of the petitioner. It was not the case that the petitioner was not considered by the Departmental Promotion Committee because of any departmental action pending against him as was put forth before the Division Bench of this Court by the learned counsel for the petitioner. 9. Now it has to be examined whether consideration of the case of the petitioner was rightly done by the Departmental Promotion Committee of the year 1998 or not. 9. Now it has to be examined whether consideration of the case of the petitioner was rightly done by the Departmental Promotion Committee of the year 1998 or not. Though it is not in dispute that adverse remark recorded in the ACR of the year 1996 was communicated to the petitioner and he made a representation, but nothing is placed on record to indicate that such a representation of the petitioner was rightly decided or not. From the proceedings done by the Review Departmental Promotion Committee, it is clear that in fact the representation of the petitioner was kept pending on the date when the Departmental Promotion Committee was convened in the year 1998 and that being the reason, the Departmental Promotion Committee took a decision to ignore the adverse remark recorded in the said ACR of the petitioner and to assign the grading to the remaining part. The order impugned itself reflects such a decision of the Departmental Promotion Committee as it is categorically recorded in the said order that the decision with respect to the representation made by the petitioner against the adverse remark recorded in the ACR of the year 1996 was not taken within the time prescribed for taking such a decision, therefore, excluding the adverse remark, the grading of ACR of the petitioner was changed to be average (C) category. Though the decision was taken by the Departmental Promotion Committee while resolving the criteria that in case such an adverse remark recorded in the ACR of any year is not communicated or if communicated and represented, the representation is not decided, the entry of the particular year would be ignored and the previous years upto the maximum of last two years’ ACR would be taken into consideration. If the representation made by the petitioner against the adverse remark recorded in the ACR of the year 1996 was not decided within time, there was no occasion for the Departmental Promotion Committee to regrade the ACR of the petitioner for the year 1996 excluding the adverse entry. In all fairness, the ACR of a previous year could have been taken into consideration by the said Departmental Promotion Committee. It is not that the ACR of the petitioner in the year preceding the year of consideration were not available and, therefore, this exercise could not have been done. In all fairness, the ACR of a previous year could have been taken into consideration by the said Departmental Promotion Committee. It is not that the ACR of the petitioner in the year preceding the year of consideration were not available and, therefore, this exercise could not have been done. Therefore, in the year 1998 when the case of the petitioner was considered by the Departmental Promotion Committee and when it was reviewed against in the year 2008, on both the occasions, the consideration of the case of petitioner for promotion was not done in appropriate manner. 10. There is yet another reason to hold so. The master chart prepared for the Departmental Promotion Committee of the year 1998 indicates that the petitioner has earned Very Good remark for the ACR of the year 1991-92, 1992-93, 1993-94 and 1994-95 i.e. for continuous four years. According to mathematic calculation of merits, for each year’s Good entry 3 marks were to be awarded. Thus, the petitioner had earned 12 marks for the last four years ACRs referred to herein above. He was awarded 1 mark for ACR of the year 1995-96 after its regarding as average. In all, the petitioner had earned 13 marks. As per the Schedule prepared by the Departmental Promotion Committee of the year 1998, the petitioner was to be graded as Very Good as he has earned the minimum marks of 13 on assessment of his ACRs. The officers who have earned lesser marks than the petitioner, such as who have earned 12 marks were said to be promoted. From the perusal of Departmental Promotion Committee record, it appears that one Narendra Singh, who has earned only 12 marks in assessment of his ACR was said to be found fit for promotion by the said Departmental Promotion Committee as his name appeared at Serial No.49 of the select list prepared by the Departmental Promotion Committee of the year 1998. The only difference between him and the petitioner was that in the last ACR on account of assessment of ACR of the year 1996, grading it to be average, the petitioner was not found fit for promotion though he has earned the Very Good remark for other previous four years’ ACRs. The only difference between him and the petitioner was that in the last ACR on account of assessment of ACR of the year 1996, grading it to be average, the petitioner was not found fit for promotion though he has earned the Very Good remark for other previous four years’ ACRs. This particular aspect was again not considered in appropriate manner by the respondents while holding the Review Departmental Promotion Committee under the orders of the Division Bench of this Court. This being so, it cannot be said that the case of the petitioner was rightly considered by the Review Departmental Promotion Committee in the year 2008. 11. The Division Bench of this Court was not apprised of the correct fact relating to consideration of the case of the petitioner. Only submission made before the Court was that the departmental proceedings were initiated against the petitioner and ultimately he was exonerated and, therefore, his case was not properly considered owing to the departmental enquiry. Such a situation was not disputed before the Division Bench and accepting that this was the real situation, the Division Bench has disposed of the writ appeal of the petitioner in the following manner : “Regard being had to the facts and circumstances of the case, we are only inclined to direct that if the appellant has been exonerated in the departmental proceeding and his case was not considered or considered and ignored because of the proceedings, a review DPC should be convened within a period of three months from the date of receipt of the order and the review DPC shall adjudge his case as per rules for the purpose of promotion when his juniors were considered. We do hereby make it clear that we have not expressed any opinion on the suitability of the appellant. In view of the aforesaid, the writ appeal stands allowed. The order passed by the learned Single Judge is set aside. There shall be no order as to costs. Certified copy as per rules.” 12. However, the record of the Departmental Promotion Committee reveals that the case of the petitioner was already considered in the year 1998 and he was not found fit for promotion because of the upgraded ACR of the year 1996 saying that he has not earned the Good remarks in the ACR of the year 1996. However, the record of the Departmental Promotion Committee reveals that the case of the petitioner was already considered in the year 1998 and he was not found fit for promotion because of the upgraded ACR of the year 1996 saying that he has not earned the Good remarks in the ACR of the year 1996. As has been discussed herein above, such an approach of the Departmental Promotion Committee of the year 1998 was not correct. The Review Departmental Promotion Committee held under the oreder of this Court has also not noted this particular anomaly and has not corrected the same. This being so, the order passed by the respondents after the Review Departmental Promotion Committee cannot be sustained. 13. Consequently, the writ petition is allowed. The order dated 20.8.2008 Annexure P-1 is hereby quashed. The matter is remitted back to the respondents to consider the case of the petitioner by holding a Review Departmental Promotion Committee once again, completely ignoring the ACR of the year 1996 of the petitioner and taking into consideration the ACR of previous year and to pass appropriate orders in respect of the petitioner. In case the petitioner is found fit for promotion on the post of Block Development Officer by the Review Departmental Promotion Committee as directed herein above, consequential orders of promotion be issued granting all consequential benefits of such promotional post. Since the petitioner has now retired, the case of the petitioner be further examined for grant of further promotion, in case any junior to him after promotion on the post of Block Development Officer is promoted to any higher post. The benefit of such promotion be also made available to the petitioner with all consequential benefits, if found fit for such promotion. Let the aforesaid exercise be completed within four months from the date of the order passed today and all benefits, be extended to the petitioner within the aforesaid period including the revision of pension and all other retiral dues. 14. The writ petition stands allowed to the extent indicated herein above. There shall be no order as to costs. .............