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2013 DIGILAW 679 (MP)

State of M. P. v. M. K. Dixit

2013-06-19

K.K.LAHOTI, M.A.SIDDIQUI

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JUDGMENT Krishn Kumar Lahoti, Actg.C.J. The petitioner has invoked jurisdiction of this Court under Article 227 of the Constitution of India by assailing the order dated 21.3.2005 passed by the Central Administrative Tribunal, Jabalpur Bench in Original Application No. 311/2004. 2. By the aforesaid order the Tribunal had allowed the Original Application, quashed the proceedings of First Review Screening Committee dated 10.10.2003, decision thereon of the State Government the recommendations of the Second Review Screening Committee dated 30.1.2004, in so far as it relates to the respondent concerned and the decision thereon of the State Government. The Tribunal have further directed the petitioner herein to convene the meeting of D.P.C., to review the minutes of the D.P.C. which met on 9.10.2001 and if the respondent is found fit for promotion to the grade of Chief Secretary, then he should be promoted from the date his juniors were promoted and thereafter grant him all the consequential benefits flowing from the said promotion. The aforesaid directions were directed to be complied with within a period of three months from the date of receipt of the copy of the order. 3. This order has been assailed by the State mainly on the ground that the Tribunal had erred in setting aside the aforesaid orders, there was no material for setting aside the minutes of the Review D.P.C., and that down grading in ACR by the Accepting Authority as Very Good against the Reporting Authority's "Outstanding" was fully justified. It was submitted that the decision by the D.P.C., was fully justified and the Tribunal had erred in interfering in it. 4. Learned Counsel appearing for the respondent No. 1 has supported the order and submitted that the Tribunal has done justice in the matter. The respondent who was entitled for the post of Principal Secretary on 12.1.1994 and the post of Joint Secretary on 2.11.2001 was deprived with the said promotion The matter of the respondent was dealt with by the D.P.C., in a very prejudicial manner. The ACRs which were expunged were taken into consideration for depriving the respondent from promotion. The juniors of the respondent were promoted and he was deprived with the promotion and could not get due promotion till his retirement. The ACRs which were expunged were taken into consideration for depriving the respondent from promotion. The juniors of the respondent were promoted and he was deprived with the promotion and could not get due promotion till his retirement. It is a very hard case for the respondent who was entitled for his promotion during his service period, but was denied and now because of pendency of this matter the said benefit has not been extended. It is submitted that because of dragging the matter by the petitioner the respondent who happens to be a senior citizen aged 69 years old is still waiting for his fate. It is submitted that this petition may be dismissed by imposing a heavy cost on the petitioner. 5. Learned Counsel appearing for petitioner opposed the aforesaid contention and submitted that for justified grounds this petition has been filed and it was admitted, so there is no question of imposition of the cost on the petitioner. 6. We have considered the rival contentions of the parties. It would be appropriate if the factual position in the case is stated: (a) That the respondent was directly recruited as an I.A.S. Officer and belongs to 1967 batch. He was allocated to the Madhya Pradesh cadre. (b) That the respondent was placed under suspension on 23.9.1991 and on 1.11.1991 an enquiry was directed in respect of two charges levelled against the respondent. (c) The suspension order was revoked on 16.12.1992. Anyhow the penalty of reduction in rank was imposed on the respondent vide order dated 29.4.1998. This order was assailed by the respondent before the CAT in O.A. No. 380/1998. The Tribunal had quashed the penalty order dated 29.4.1998 vide order dated 31.8.2001. Against the said order the State and Union of India had preferred a writ petition before the High Court. The High Court confirmed the order, but directions as contained in para 19.1 and 19.2 of the order dated 31.8.2001 were quashed. However, the rest of the order of the Tribunal was maintained by the High Court. 7. The State Government in compliance of the orders had cancelled the penalty order. During the pendency of the departmental proceedings the respondent was entitled for consideration for promotion for the post of Principal Secretary and Chief Secretary. However, the rest of the order of the Tribunal was maintained by the High Court. 7. The State Government in compliance of the orders had cancelled the penalty order. During the pendency of the departmental proceedings the respondent was entitled for consideration for promotion for the post of Principal Secretary and Chief Secretary. In May 2003 the case of the respondent for promotion on the post of Principal Secretary w.e.f. 12.1.1994 was considered by a Review Screening Committee. The respondent protested in respect of the constitution of the Review D.P.C. on the ground that three officers constituting the Review D.P.C., were juniors to the respondent, however on 11.7.2003 the State Government had issued an order granting notional promotion to the rank of Principal Secretary w.e.f. 12.1.1994 to the respondent. The respondent had made a prayer to the State for grant of monetary benefits, but the said prayer was not considered. 8. The respondent No. 1 again represented to the State Government for his consideration for promotion to the post of Chief Secretary Grade as his batch-mates were considered and promoted to the grade of Chief Secretary w.e.f. 2.11.2001. Again a Review Screening Committee was constituted to adjudge the suitability of the respondent to the grade of Chief Secretary. The respondent again represented in respect of the constitution of the committee of junior officers. It was also submitted by him that four batch mate IAS officers were already granted Chief Secretary Grade scale. The Review Screening Committee held its meeting on 30-1.2004. The Review Committee, considering the benchmark adopted by it, had found that the respondent was not fit for the Chief Secretary grade. As the respondent was not granted Chief Secretary Grade he had filed an Original Application before the Tribunal. 9. The Tribunal after considering the rival contentions of the parties recorded following findings:- (1) That in the light of the directions issued by the Tribunal earlier the respondent was granted the rank of Principal Secretary w.e.f. 12.1.1994 vide order dated 11.7.2003. The entire service record including the ACR, dossiers were examined by the Tribunal. The ACRs of the respondent No. 1 were as under:-- 1997 Qutstanding 1998 Good 1999 Very Good 2000 Very Good During the years 2001-02 the Reporting Officer had graded the respondent as Outstanding, but the Accepting Authority down graded it as Very Good, without assigning any reasons. The entire service record including the ACR, dossiers were examined by the Tribunal. The ACRs of the respondent No. 1 were as under:-- 1997 Qutstanding 1998 Good 1999 Very Good 2000 Very Good During the years 2001-02 the Reporting Officer had graded the respondent as Outstanding, but the Accepting Authority down graded it as Very Good, without assigning any reasons. (2) The Tribunal found that for down grading the ACR the Accepting Authority ought to have assigned reasons, without which the down grading was not justified. Reliance was placed to the judgment of the Apex Court in U.P. Jal Nigam and others v. Prabhat Chandra fain and others. 1996 2 SCC 363 : 1996 (72) FLR 702 (SC) (3) The Review D.P.C., had not given any reason for not finding the respondent fit for promotion. (4) That in O.A. 113/2000 the Tribunal had issued an order on 5.3.2000 that for the year 1993-94 and 1994-95, the ACR shall be treated as not written, therefore the D.P.C., should have ignored the ACRs of these years. However in the year 1994 the respondent was promoted on the post of Principal Secretary, so the earlier ACRs were treated as ignored. (5) That the review D.P.C., which had met on 10.10.2003 was required to review the case of the respondent as on 9.10.2001, but the members of the review D.P.C., namely Shri A.V. Singh, Shri A.K. Gupta and Smt. Binoo Sen were selected for the grade of Chief Secretary on 9.10.2001 itself, so they were very much interested in the DPC of 2001 and these members ought not to have made members of the D.P.C., to consider the case of the respondent for grant of Chief Secretary grade w.e.f. 9.10.2001. The Tribunal had also found that these persons ought to have rescued themselves to be the members of the D.P.C., as they were interested in the same. Reliance was placed to the judgment of the Apex Court in Badrinath v. Government of Tamil Nadu and others. AIR 2000 SC 3243 [para 79]. (6) That in the Review D.P.C., the committee had fixed criteria that out of 10 ACRs of the officer, at least 5 ACRs should be Outstanding, while in the review D.P.C., which was held on 9.11.2001 no such criteria was fixed by the members of the D.P.C. The Tribunal have found that there was no rational basis for the same. (6) That in the Review D.P.C., the committee had fixed criteria that out of 10 ACRs of the officer, at least 5 ACRs should be Outstanding, while in the review D.P.C., which was held on 9.11.2001 no such criteria was fixed by the members of the D.P.C. The Tribunal have found that there was no rational basis for the same. On the aforesaid findings the Tribunal have found that the proceedings of the Review D.P.C., vitiates and directed for reconsideration of the matter. 10. We have examined the matter. The Review Screening Committee which was constituted to consider the case of the respondent for grant of Chief Secretary grade w.e.f. 9.10.2001 was wrongly constituted. All the three members, who were members of the said D.P.C., were granted the same grade in the D.P.C., on 9.10.2001. As these persons were granted the same scale in the same D.P.C., which was sought to be reviewed, so these persons ought not to have been made members of the D.P.C., as their interests could have been affected or they may be interested in the result of the same D.P.C. In the aforesaid circumstances, if the Tribunal have found that there was no fair D.P.C., and those persons ought not to have been made party of the D.P.C., no fault is found. The Apex Court in similar circumstances in A.K. Kraipak and others v. Union of India and others, AIR 1970 SC 150 set aside the proceedings. Similar view has been taken by the Apex Court in the case of Badrinath (supra). 11. So far as the second ground is concerned, for down grading the ACR by the Reporting Officer he ought to have assigned reasons, in absence of which down grading ACR of the respondent was not justified, as has been held by the Apex Court in U.P. Jal Nigam (supra). In this regard, the finding of the Tribunal appears to be just and proper. So far as fixing the criteria by the Review D.P.C., is concerned when the matter of the respondent was to be adjudged as Review D.P.C., of 9.10.2001 the similar parameters ought to have been fixed by the D.P.C., so that the case of respondent could have been dealt with on the same parameters on which his colleagues were considered in the D.P.C. on 9.10.2001. Fixing a different criteria was also not justified. 12. Fixing a different criteria was also not justified. 12. In view of aforesaid, we do not find any error in the impugned order warranting our interference. This petition is without any merit and is dismissed. As because of the ad-interim writ issued in the matter the case of the respondent has not been considered for a long period of near about 8 years, we find it appropriate to allow cost to the respondent of this litigation, which we quantify Rs. 10,000/- (Rupees ten thousand only) payable by the petitioner to the respondent No. 1. 13. With the aforesaid direction, their petition is dismissed with cost.