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2013 DIGILAW 613 (MP)

R. K. Parashar v. M. P. Power Management Company

2013-05-08

K.K.TRIVEDI

body2013
JUDGMENT : This petition under Article 226 of the Constitution of India is filed seeking to challenge the correctness of the grading made in the annual confidential report ('ACR' for short) of the petitioner in the year 2010-2011. It is contended that after receiving the report of the Reporting Authority, the Reviewing Authority graded the petitioner as 'Excellent' officer but such a grading of the petitioner was disturbed on the noting made by the Secretary of the respondent Company by the Chairman-cum-Managing Director and since such an action was based on mala fides of the respondents-authorities, the change of grading in the ACR of the petitioner by the Chairman-cum-Managing Director was unjustified and is, thus, liable to be quashed. It is contended that the petitioner was superseded in the matter of promotion, though he was eligible to be promoted on the next higher post, with ulterior motive, which action was called in question in a writ petition before this Court being W.P. No. 19207/2011 (S) and as a result of this mala fide borne in the mind of the respondents, the grading of the ACR of the petitioner was changed, which action of the respondents is per se illegal, therefore, the petitioner was constrained to approach this Court by way of filing this writ petition. On the basis of these pleadings, the petitioner has claimed the following relief: "The petitioner humbly and respectfully prays that this Hon'ble Court may be pleased to issue a writ in the nature of (a) Certiorari quashing the grading given by the respondent Chairman in the note sheet, dated 23-12-2011 (Annexure P-6); (b) Mandamus directing the respondents to maintain the grading of 'A+' given by the Reviewing Officer in the ACR of the year 2010-11; Any other order or orders that this Hon. Court deems fit and proper in the facts and circumstances of the case may also kindly be passed." 2. The writ petition was entertained, notices were issued to the respondents and they have filed a return contending inter alia that under the procedure prescribed for writing the ACR, the same is required to be initiated by the Reporting Officer, who has seen the working of the concerned incumbent. The ACR thereafter is placed before the Reviewing Officer, who gives his opinion. The ACR thereafter is placed before the Reviewing Officer, who gives his opinion. Thereafter, the matter refers to the Endorsing Officer and ultimately it is sent to the Accepting Authority, which makes the comments after examining the overall performance of the person concerned. Such is the scheme made by the respondents by issuance of a circular placed on record as Annexure R-2. It is contended that since the Reporting Officer specifically made the grading of the petitioner after recording the reasons thereof and categorized the petitioner as 'B' category officer, the same was required to be seen by the Reviewing Officer and Endorsing Officer. However, without there being any justified reason, the petitioner was graded as 'Excellent' officer by the Reviewing Officer. When ultimately the same was placed before the Chairman, being the Accepting Authority, the grading made by the Reporting Officer was accepted and petitioner was graded as 'B' category officer. Therefore, there is no illegality committed by the respondents in considering the ACR of the petitioner or making grading in the said ACR. The allegations of mala fides are denied and it is pointed out that the decision rendered by this Court in W.P. No. 19207/2011 (S) is subject matter of a writ appeal in which an interim stay has been granted, therefore, such allegations of the petitioner are baseless. It is, thus, contended that the petition is liable to be dismissed. 3. Heard learned Counsel for the parties at length and perused the record. 4. Learned senior Counsel for the petitioner has contended that there was every reason to believe that the ACR grading of the petitioner was changed to his detriment because of the fact that respondents were prejudiced against the petitioner. It is vehemently contended by learned senior Counsel that since an order was passed in his favour in the writ petition wherein it has been held by the single Bench of this Court that the petitioner was denied the promotion illegally, it would be writ large that the grading of the ACR was changed to deny promotion to the petitioner. This being so, it is contended that the mala fides are proved in view of the law laid-down by the Apex Court in the case of Ravi Yashwant Bhoir vs. District Collector, Raigad and others, (2012) 4 SCC 407 . This being so, it is contended that the mala fides are proved in view of the law laid-down by the Apex Court in the case of Ravi Yashwant Bhoir vs. District Collector, Raigad and others, (2012) 4 SCC 407 . It is further contended by learned senior Counsel that in view of the law laid-down by the Apex Court in several cases, if the ACRs are written in such manner without keeping in mind the performance of duties of the petitioner and his previous service record, they are to be treated as improperly written ACRs with a mala fide intention. Relying in the case of S. Ramachandra Raju vs. State of Orissa, 1994 Supp (3) SCC 424, and in the case of M. A. Rajashekhar vs. State of Karnataka and another, (1996) 10 SCC 369 , it is contended by learned Counsel for the petitioner that the ACR grading of the petitioner made by the Accepting Authority was liable to be quashed and the grading made by the Reviewing Authority was to be accepted. Further relying in the case of Nand Kumar Verma vs. State of Jharkhand and others, (2012) 3 SCC 580 , it is contended by learned senior Counsel for the petitioner that the ACRs are to be written on the basis of relevant material and cursory remark is not required to be made. Reading as a whole the comments made by the Reporting Officer, learned senior Counsel for the petitioner has contended that there was no justified reason in grading the petitioner as 'B' category officer by the Reporting Officer. This aspect was considered by the Reviewing Authority and an endorsement was rightly made grading the petitioner as 'Excellent' officer. The Secretary of the Chairman-cum-Managing Director had no role to play in the matter of writing of ACRs of the officers like petitioner but only because he made a noting on the basis of appraisal report of the petitioner and placed before the Accepting Authority, mechanically the grading of the petitioner as was made by the Reviewing Officer, was changed and the petitioner was graded as 'B' category officer in the said ACR. This was done with an object to restrict the petitioner below the benchmark, which is fixed for the purposes of grant of next higher promotion and in view of this, there was malice in law and applying the law laid-down by the Apex Court, it is to be held that the gradings of the petitioner were illegally changed by the Accepting Officer. It is, thus, contended that the petitioner is entitled to the relief claimed in the writ petition. 5. Per contra it is contended by learned Counsel appearing for the respondents that if the petitioner was aggrieved by the grading made in the ACR, treating the same as adverse or prejudicial, the petitioner was required to make a representation before the committee constituted for the said purpose in the Company. It is contended that a committee of five members is already constituted in the Company for the purposes of considering all such representations made by the employees and officers against the ACRs. The said committee is competent to take suitable decision and to recommend the authorities to pass orders on such representations. However, the petitioner has not made any such representation and, therefore, the writ petition is not maintainable. Further, it is contended that the order passed in W.P. No. 19207/2011 (S) is the subject matter of writ appeal filed before the Division Bench of this Court where an interim stay has been granted. The note-sheet was written much before the final decision in the said writ petition, which was said to be decided on 18-9-2012 whereas the final orders were passed in respect of ACR grading by the competent authority on 23-12-2011. Therefore, it is contended that there was no prejudice on account of passing of any order in a writ petition in favour of the petitioner, in the matter of making any grading of the petitioner in the ACR. Further it is submitted that since the matter is subjudice before appropriate forum in this Court itself, it would not be justified to look into such allegations made in this writ petition and, therefore, there cannot be any finding in respect of such mala fide as alleged. Further it is submitted that since the matter is subjudice before appropriate forum in this Court itself, it would not be justified to look into such allegations made in this writ petition and, therefore, there cannot be any finding in respect of such mala fide as alleged. Further it is submitted by learned Counsel for the respondents that in fact after finalization of proceedings of writing the ACR of the petitioner in question, the same was placed before the Endorsing Officer, who was the Chairman-cum-Managing Director of Generation Company. It is submitted that the Reviewing Officer and Reporting Officer being the same, it was not possible for the Additional Director (Finance) to give a comment as a Reviewing Officer and, therefore, the matter was placed before the Chairman-cum-Managing Director of Generation Company. There were certain comments made by the Reporting Officer himself with respect to the working of the petitioner wherein it was specifically recorded that the petitioner's temperament was not always moderate as he has habit of shouting at many times, not only on the subordinates but sometimes at senior officers also. After examining the overall performance of the petitioner, the Reporting Officer has graded the petitioner as 'Good', i.e. 'B' category officer. When the matter was placed before the Endorsing Officer, for some reasons he recorded that due to frustration of not getting promoted timely despite being much senior than others, the petitioner has behaved badly. Even then he graded the petitioner as 'Excellent' A+ officer. This was solely examined by the Accepting Officer and he agreed with the grading of the petitioner made in the ACR by the Reporting Officer, who has watched the work of the petitioner and endorsed the grading of the petitioner made by the Reporting Officer. There was nothing to show that this grading was done by the Reporting Officer out of any prejudice nor there is anything available on record or reflected from the note-sheet written by the Secretary of the Company that any change in the grading was suggested by the said officer. The only thing which was done by the Secretary was that he noted on the note-sheet that in the last 10 years the gradings of the petitioner for the maximum period was 'B' in the ACRs. The only thing which was done by the Secretary was that he noted on the note-sheet that in the last 10 years the gradings of the petitioner for the maximum period was 'B' in the ACRs. It is contended that merely because such a noting was made, no prejudice was caused against the petitioner and, therefore, the allegation that only because of the noting of the Secretary of the Company, the petitioner has been graded as 'B' category officer by the Accepting Authority is not justified. Thus, it is contended that no specific case is made out to interfere in the grading made by the authorities of the respondents in the ACR of the petitioner and the petition is, thus to be dismissed. 6. True it is that the ACR of the petitioner was written much before the date of decision in the earlier writ petition of the petitioner. It is also true that the order passed by the single Bench of this Court in the aforesaid writ petition is the subject-matter of the writ appeal pending before the Division Bench of this Court where an interim stay has been granted. The proprietary and the judicial discipline demands that when such a matter is pending judicial review before the higher forum, no comments should be made with respect to the findings recorded in the order passed in the writ petition by this Court dealing with the present writ petition. That apart, it is seen from the record that the ACR of the petitioner in question was written before the date of order finally passed in the aforesaid writ petition and, therefore, it cannot be presumed that the grading was made in the ACR of the petitioner because of any favourable order passed in the writ petition in respect of the petitioner. The Apex Court has clearly laid-down in several cases that this Court would not look into the correctness of the gradings made in the ACRs as if it is a reviewing authority of the said ACRs. The judicial review of such an action of writing the ACRs is very limited. The Apex Court has clearly laid-down in several cases that this Court would not look into the correctness of the gradings made in the ACRs as if it is a reviewing authority of the said ACRs. The judicial review of such an action of writing the ACRs is very limited. It was always better if the gradings made in the ACRs are subjected to a scrutiny before the committee constituted for the purposes of considering the representation made against the ACRs because the said committee has a larger scope of examining the records and to reach to the particular conclusion. However, this cannot be done by this Court. Secondly, it is seen that ACR grading of the petitioner was made by the Reporting Officer himself after closely watching the work of the petitioner and in none than clear words it was said that the petitioner is graded as 'Good', 'B' category officer. Normally the gradings made by the Reporting Officer are accepted and it is just and proper also in view of the fact that the Reporting Officer is the immediate superior officer, who closely watches the work of a subordinate. There is no allegation made in the petition to this effect that the Reporting Officer was not properly working or was having any mala fide or prejudice against the petitioner and deliberately made such grading, which was not in consonance to the work performance of the petitioner. From the record it is clear that the Endorsing Officer, who has virtually not examined the working of the petitioner continuously for a sufficient period, has graded him 'Excellent' A+ officer though he endorsed in the said note that the petitioner has behaved badly on account of some frustration because of his delayed promotion. It is also noted that there was no reference made by the Endorsing Officer in his grading that the past remarks in the ACRs of the petitioner were looked into and then the grading was done. How and in what manner the petitioner was treated to be an excellent officer by the Endorsing Officer and how such a remark was made when the petitioner was graded as 'B' category officer by the Reporting Officer, is not indicated in the note made by the Endorsing Officer. 7. How and in what manner the petitioner was treated to be an excellent officer by the Endorsing Officer and how such a remark was made when the petitioner was graded as 'B' category officer by the Reporting Officer, is not indicated in the note made by the Endorsing Officer. 7. From the note-sheet placed on record, written by the Secretary of the Company, it is seen that the said note contains nothing but the remarks of the Reporting Officer, remarks of the Endorsing Officer and said Secretary has summarized in the note-sheet that in the last 10 years ACRs of the petitioner, he was graded 'B' category officer in 7 years ACRs. He never suggested any grading of the petitioner to be made in the ACR in question. The note-sheet was sent to the Chairman-cum-Managing Director of Company, who has made a comment that 'based upon the Reporting and Reviewing Officer's the grading of the petitioner is maintained as B'. It is thus clear that there was no role played by the Secretary of the respondent Company in writing the ACR of the petitioner or making any grading in the ACR of the petitioner. In view of this, the law laid-down by the Apex Court in the cases of Ravi Yashwant Bhoir (supra), 5. Ramachandra Raju (supra), M. A. Rajasekhar (supra) and Nand Kumar Verma (supra) would not be applicable as there was nothing to suggest that the gradings made by the Reporting Officer were tampered or changed unauthorizedly by the Accepting Officer. In fact from the record it is clear that the grading made by the Reporting Authority was fully accepted by the Accepting Authority, discarding the grading made by the Reviewing Authority. 8. For the aforesaid reasons, it is clear that the grading of the ACR of the petitioner was done in the manner indicated in the circular without there being any tampering on the same on account of noting of the Secretary of the Company and as such the act of the respondents cannot be said to be bad in law. 9. There is no substance in the writ petition. The same deserves to be and is hereby dismissed. However, there shall be no order as to costs. Petition dismissed.