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Madhya Pradesh High Court · body

2015 DIGILAW 1253 (MP)

K. N. Verma v. State of M. P.

2015-12-17

VANDANA KASREKAR

body2015
ORDER 1. The petitioner has filed the present writ petition challenging the appointment of respondent No.4 on the post of Sub-Registrar as well as praying for a direction to the respondents to consider the case of the petitioner for appointment on the post of Sub-Registrar by ignoring the ACRs of year 1998-1999 and 2000- 2001. 2. The brief facts of the case are that the petitioner was serving on the post of Upper Division Clerk in the office of District Registrar Registration, Betul. The State Government in exercise of the powers given under Article 309 of the Constitution of India has framed the Recruitment Rules for appointment on the post of Class III( Non-Ministerial Post). These rules are known as Madhya Pradesh Registration and Stamps Class III (Non-Ministerial Staff) Services Recruitment Rules, 1989 (hereinafter referred to as the rules). 3. The mode of recruitment to the said services has been prescribed in rule 6 of the said Rules. As per the said Rules 10% posts are ear-marked to be filled by appointment of ministerial staff of the department through a limited competitive examination. The selection was to be made on the basis of the marks obtained in the written examination and on valuation of the ACRs for last 5 years. The written examination consist of two papers having 50 marks each and 20, 15 and 10 marks were assigned for the outstanding, very good, good and average ACRs respectively. 4. The petitioner appeared in the written examination for appointment on the post of Sub-Registrar which was held on 23.3.2003 and the petitioner has received 24 and 30 marks in first and second paper in the written examination and 90 marks in ACRs. Thus, total marks which is awarded to the petitioner is 146 marks. It is further submitted by the petitioner that the petitioner was awarded 29 marks for each 3 ACRs, however, he was awarded 50 marks each for the ACRs of 1998-1999 and 2000-2001 as he assessed as good in the said year. The petitioner has further submits that the respondent No.4 has also appeared in the process of selection and he got less marks in the written examination, but he was selected on the post of Sub-Registrar on the basis of the marks awarded in the ACRs. The petitioner has further submits that the respondent No.4 has also appeared in the process of selection and he got less marks in the written examination, but he was selected on the post of Sub-Registrar on the basis of the marks awarded in the ACRs. The petitioner came to know that in ACRs of the year 1998-99 and 2000-01 the petitioner was assessed as outstanding by the initiating authority but the same ACRs were downgraded by respondent No.3 without assigning any reason and without communicating the same to the petitioner and due to downgrading of these ACRs. The petitioner could not be selected for appointment on the post of Sub-Registrar, he, therefore, filed the present petition. 5. The respondents have filed their reply and in the reply the respondents have stated that as the ACRs of the petitioner were downgraded in the year 1998-99 and 2000-01 and therefore, on the basis of the marks he could not get selected on the said post. The respondents further submits that out of 100 marks in the ACRs the petitioner has awarded 90 marks. Thus, the total number which is secured by the petitioner comes to 146 while the persons who were selected for appointment they got more marks than the petitioner. The respondents have denied that the downgrading in the ACRs was done with the malafied intention and the petitioner has, therefore, prays for dismissal of the writ petition. 6. The petitioner has filed the rejoinder to the reply filed by the respondents and submits that before downgrading the ACRs of the petition, no notice or any reasons have been assigned by respondent No.3 and therefore, the said downgrading made by the respondent No.3 is to be ignored. He further submits that the respondent No.3 had reviewed the impugned ACRs on a single day and the assessment was made without application of mind. The respondents have not assigned any reasons for downgrading, the CRs made by respondent No.3. 7. Learned counsel appearing for the petitioner argues that the respondent No.3 with a malafied intention has downgraded the CRs of the petitioner for year 1998-99 and 2000-01, the initiating authority as assessed the ACRs of the two years as outstanding. However, the respondent No.3 has downgraded the same to the good and before downgrading the CRs no opportunity of hearing or any notice was issued to the petitioner. However, the respondent No.3 has downgraded the same to the good and before downgrading the CRs no opportunity of hearing or any notice was issued to the petitioner. He further submits that no reasons whatsoever, have been assigned by the respondent No.3 in downgrading the CRs. Therefore, the respondents should have ignored the ACRs of these two years and should have considered the case of the petitioner for appointment on the post of Sub-Registrar and for the said purpose, he relied on a judgment passed by this Court in the case of “Tara Chand Soni v. State of M.P. and others reported in 2015(2) MPHT 319” as well as the judgment dated 10.9.2015 passed by this Court in Writ Petition No.6310/2012. On the other hand the learned counsel for the respondents argues that as the CRs of the petitioner in the year 1998-99 and 2000-01 has been down graded and therefore, the petitioner secured less marks than the persons who got selected and there was no mala fide intention on the part of the respondent No.3 in downgrading the CRs of the petitioner. 8. I have heard learned counsel for the petitioner and perused the record of the petitioner as well as ACRs folder produced by the respondents. 9. From perusal of the ACRs folder, it is found that the petitioner got the very good remarks for the year 1997-98 and for the 1998-99 he was given the outstanding, however, the respondent No.3 has down graded the same by making a remark that ( ftyk iath;d }kjk cgqr c<+k dj fy[kk x;k gS Jh oekZ dh Js.kh ß[kÞ gS ). Similarly, for the year 1999-2000 the petitioner was graded as very good, however in the year 2000-01 reporting officer has given the remarks very good. However, the respondent No.3 has down graded ( buds lexz ewY;kadu dh n`f"V lsa bUgs Js.kh ß[kÞ ¼vPNk½ es j[kk tkrk gS] Js.kh ds yk;d ughaA ) 10. Thus, from perusal of the record, it is clear that the reporting officer has been given a remarks of very good and outstanding to the petitioner, however, respondent No.3 has downgrated the same to good and it is also found that before downgrading the said CRs no notice or any opportunity of hearing is given to the petitioner by the respondents. This Court while disposing of the Writ Petition No.6310/2012 in paragraph has held as under:- 11. This Court while disposing of the Writ Petition No.6310/2012 in paragraph has held as under:- 11. This Court in the case of Tara Chand Soni (Supra), in paragraph 8 has held as under : “8. Now, in context of the aforesaid, it is to be seen how the ACRs of the petitioner were down graded and how they have been treated as insufficient to grant promotion to the petitioner. In the ACR of the year 1976, the initiating authority has treated working of the petition as ‘Very Good’. The immediate senior officer of the initiating authority recorded that the petitioner is required to take more interest in the land record work. He had graded the petitionr as “ Good”. However, the final authority simply recorded that the work of the petitioner is satisfactory and graded him as “Average”. A “Very Good” remark by the Initiating Authority was converted into “Average” remark without any cogent reason. It was not the sweet will of the officer concerned to finally downgrade the petitioner in such manner. He was required to record the reason as to why he has downgraded the petitioner in the said ACRs. Similar was the situation for the ACRs. Similar was the situation for the ACRs of the year 1977 and 1978. The initiation Authority has graded the petitioner as “Good”, which was treated to be “Average” by the final authority that, too, without recording any reason. On one occasion, the Collector himself has written that he was agreeing with the assessment made by the Tahsildar. If the said Tahsildar has grade the petitioner as “Good” then grading of the ACRs was to be treated as “Good”. 12. In the said judgment, this Court has held that the accepting authority is required to record the reason as to why he has downgraded the petitioner in the said ACR. Similarly in the case of Shmabu Dayal Richhariya v. State of M.P. and another (Writ Petition No. 8539/2011(s) dated 5.12.2012, this Court has held as under : “Even though, Shri Sanjeev Kumar Singh tried to emphasize that the representation has been decided in accordance with the circular Annexure R-1 dated 30 th June, 1992. Similarly in the case of Shmabu Dayal Richhariya v. State of M.P. and another (Writ Petition No. 8539/2011(s) dated 5.12.2012, this Court has held as under : “Even though, Shri Sanjeev Kumar Singh tried to emphasize that the representation has been decided in accordance with the circular Annexure R-1 dated 30 th June, 1992. The fact remains that the initiating authority and the first reviewing authority have graded the applicant as outstanding i.e. A+ for the years in question and the second reviewing authority has downgraded the same to A, in the light of the law laid down by the Supreme Court in the case of Dev Dutt (supra), the principles of natural justice has to be applied with in such cases and the downgrading by the second reviewing authority for the years in question having been done without notice to the petitioner and without hearing him, the same is unsustainable. To that extent, the relief has to be granted to the petitioner.” 13. From perusal of the aforesaid judgment, it is clear that an opportunity of hearing or show cause notice is required to be given to the petitioner before downgrading his CRs. Thus, from perusal of both the judgments, as well as in the facts of the present case as no opportunity of hearing or any notice was issued to the petitioner before downgrading the CRS as well as no reason, whatsoever, has been assigned by the accepting authority in downgrading the CRs and, therefore, the action of the respondents in downgrading the CRs of the petitioner is not sustainable in law. Para 47 of the order passed by the apex Court in the case of Dev Dutt (Supra), relied on by learned counsel for the respondents relates to upgrading of CRs and, therefore, para 47 of the said judgment is not applicable in the present case. 14. Thus, from perusal of the judgment passed by this Court as well as the record, this petition is deserves to be and it is hereby allowed. 15. The respondents are directed to consider the case of the petition for appointment on the post of Sub-Registrar and if the petitioner found fit for appointment then he should be appointed on the post of Sub-Registrar along with all consequential benefits by ignoring the ACRs of 1998-99 and 2000-01. 15. The respondents are directed to consider the case of the petition for appointment on the post of Sub-Registrar and if the petitioner found fit for appointment then he should be appointed on the post of Sub-Registrar along with all consequential benefits by ignoring the ACRs of 1998-99 and 2000-01. The aforesaid exercise be carried out within a period of three months’ from the date of receipt of certified copy of the order passed today.