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2015 DIGILAW 247 (MP)

Roop Singh v. State of M. P.

2015-02-27

VANDANA KASREKAR

body2015
Judgment Vandana Kasrekar, J. 1. The petitioner was appointed as an Assistant Engineer on 1-1-1986 and was posted at Shivpuri. The petitioner was thereafter promoted to the post of Executive Engineer in the year 2001 and was posted at Jhabua. He was again promoted to the post of Superintending Engineer vide order dated 14-7-2006 and was posted on deputation with the Narmada Valley Development Authority at Indore. Respondent No. 1 issued a seniority list of the Superintending Engineers (Civil) wherein the name of the petitioner is at serial No. 44 and the names of respondent Nos. 3 and 4 are at serial Nos. 45 and 47, however, the respondent Nos. 3 and 4 are the juniors to the petitioner. The petitioner, thereafter, was repatriated to his parental department from NVDA, however, all of sudden, he was served with the adverse remark to his Annual Confidential Report for the period from 1-1-2009 to 31-3-2009 vide letter dated 18-3-2011. Again the petitioner was served with adverse remark to his ACR for the year ending March, 2010 vide letter dated 29-3-2011, the petitioner, therefore, submitted an application for grant him some time, as he has applied for the necessary documents vide his letter dated 13-4-2011, which was granted to him vide letter dated 3-5-2011. The petitioner thereafter submitted his representation against the said ACRs. on 26-5-2011. The representation submitted by the petitioner was rejected vide order dated 2-3-2012. In the meanwhile, DPC was held and respondent Nos. 3 and 4 were promoted to the post of Chief Engineer, however, the case of the petitioner was not considered for promotion due to the said adverse remarks. 2. Learned Counsel for the petitioner submits that as per the circular issued by the State-Government dated 29-11-1984, the adverse ACRs are required to be communicated within a period of three months. If the ACRs are communicated after the period of three months, the same will be treated as non est. He submits that in the present case, ACR of the year 2009 was communicated to the petitioner in the year 2010 and the ACR of the year 2010 was communicated to him in the year 2011, i.e., after expiry of period of three months. He submits that in the present case, ACR of the year 2009 was communicated to the petitioner in the year 2010 and the ACR of the year 2010 was communicated to him in the year 2011, i.e., after expiry of period of three months. He further submits that the order dated 2-3-2012 by which the respondents have rejected the representation submitted by the petitioner against his adverse ACRs is also non-speaking order and deserves to be set aside. He, therefore, prays that these ACRs may be expunged and the respondents may be directed to consider his case for promotion along with his juniors. For the said purpose, learned Counsel for the petitioner has relied upon the two judgments passed by this Court in the case of Rajesh Kumar Saxena Vs. State of M.P. and another, reported in 2012 (4) M.P.H.T. 19 and Rajesh Kumar Rusia Vs. State of M.P. and others, reported in 2005 (3) MPLJ 313 . 3. Learned Panel Lawyer for respondent Nos. 1 and 2 submits that respondent Nos. 1 and 2 have filed their reply and stated that after obtaining the report from the Assessing Authority, the remarks were communicated to the petitioner. He further submits that the integrity of the petitioner was doubted and, therefore, comments of Shri R.S. Julania, Member (Rehabilitation), NVDA were called for and on the basis of the comments of Shri R.S. Julania, the representation of the petitioner has been rejected. It is also contended that the allegation of consumption of liquor on duty hours, a departmental enquiry is proposed to be held against him. Initiating Authority, despite observing the careless attitude and conduct of the petitioner did not mention anything while initiating the ACRs with his comments, however, the Assessing Authority has made specific remarks that the assessment of the petitioner mentioned by the Initiating Authority are not based upon the facts whereas the petitioner is habitual drinker. Accordingly, a remark of "Below Average (Gha)" was awarded in the ACR of the year 2009. Learned Panel Lawyer further submits that looking to the service record of the petitioner, these ACRs were communicated to him and his representation is rejected by taking into consideration of all the facts and, thus, no illegality is committed by the respondents in rejection the representation submitted by the petitioner. 4. Learned Panel Lawyer further submits that looking to the service record of the petitioner, these ACRs were communicated to him and his representation is rejected by taking into consideration of all the facts and, thus, no illegality is committed by the respondents in rejection the representation submitted by the petitioner. 4. The petitioner has also filed rejoinder denying the allegations made by the respondents in their reply. Respondent Nos. 3 and 4 have also filed their reply stating that they have rightly been promoted to the higher post and, therefore, their promotion-be upheld. 5. I have heard learned Counsel for the parties and perused the record. As per circular issued by the State Government, the respondents are required to communicate the ACRs within a period of three months. The object of writing the confidential reports and making entries in them is to give an opportunity to a public servant to improve excellence. Article 51-A(j) enjoins upon every citizen the primary duty to constantly endeavour to prove excellence, individually and collectively, as a member of the group. Given an opportunity, the individual employee strives to improve excellence and thereby efficiency of administration would be augmented and if the ACRs are communicated at the belated stage, then the object of communicating the ACRs will be frustrated. From perusal of the record, it appears that the ACRs from 1-1-2009 to 31-3-2009 were communicated to the petitioner vide letter dated 18-3-2011, i.e., after a period of three months and the ACRs of March, 2010 were communicated to the petitioner vide letter dated 21-3-2011, i.e., also after a period of three months. The petitioner submitted a representation against the adverse remarks of the said ACRs, which was dismissed vide order dated 2-3-2012 by a non-speaking order and without considering the grounds raised by the petitioner in his representation. 6. This Court in the case of Rakesh Kumar Saxena (supra) in Para 6 has held as under:-- "6. The object of writing of Annual Confidential Report is well-known in the service jurisprudence. The confidential reports of an employee is to be written only for the purposes of adjudging his service abilities. If an employee of department, who was having the excellent service record or satisfactory service record, started showing downfall in performance or discharge of his duties, the entries are required to be made in the Annual Confidential Report. The confidential reports of an employee is to be written only for the purposes of adjudging his service abilities. If an employee of department, who was having the excellent service record or satisfactory service record, started showing downfall in performance or discharge of his duties, the entries are required to be made in the Annual Confidential Report. Such entries whether adverse or not, are required to be shown to the said employee to apprise him or her with respect to performance of duties so that he or she may improve the working in future. The object of recording of Annual Confidential-Report would be frustrated in case it is not timely communicated. This being the reason, the State Government has issued the circular time and again directing as to how the adverse part of the Annual Confidential Reports are to be communicated, within which period the said communication is to be made and within which period the representation, if any made against such entry, is required to be decided. This has been reiterated in the circular dated 9th March, 1992, wherein all the circulars previously issued right from 1979 upto 1990 have been referred. The State Government has very categorically provided a time mechanism for writing of confidential report. The initiation of Annual Confidential Report is to be done by 15th April. The Reviewing Officer is required to give his comments by 1st of May. The Approving Authority is required to record his comments by 15th May. If any adverse entry is recorded, the same is to be communicated within 30 days from the aforesaid final date mentioned in the circular. If any representation is made against the said adverse entry, the same is to be decided within a month. If any inquiry is required to be conducted with respect to the representation made against the adverse entry that has to be completed within a period of three months. This indicates that intention of the State Government is to apprise the employee concerned against whom the adverse entry is recorded, with respect to such adverse entry and to complete the process of finalising the representation etc. made against such entry within the stipulated period so that nobody may face any prejudice or inconvenience in case of promotion. That being so, it was necessary on the part of the respondents to communicate the adverse entry to the petitioner timely. 7. made against such entry within the stipulated period so that nobody may face any prejudice or inconvenience in case of promotion. That being so, it was necessary on the part of the respondents to communicate the adverse entry to the petitioner timely. 7. Similarly, this Court in the case of Ramesh Kumar Rusia (supra), has held that the representation made by the petitioner against the adverse remarks in Annual Confidential Report, then the authority was duty bound to decide the representation by passing a speaking order. In the present case, as the representation is rejected by the respondents by a non-speaking order, therefore, the order rejecting the representation deserves to be set aside. In view of forgoing discussions and keeping in view the facts as have come on record, this writ petition deserves to be and is hereby allowed. The order dated 2-3-2012 rejecting the representation submitted by the petitioner against the adverse remarks in Annual Confidential Reports is hereby quashed. The respondents are commanded to expunge the adverse entries recorded in the ACRs of the petitioner for the years 2009 and 2010 (Annexures P-2 and P-3). The respondents are directed to convene the review DPC and to consider the case of the petitioner for promotion to the post of Chief Engineer along with his juniors and if the petitioner found fit, then the respondents are directed to promote him from the date when his juniors were promoted along with all consequential benefits. The aforesaid exercise be completed within a period of four months from the date of receipt of certified copy of this order.