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Madhya Pradesh High Court · body

2015 DIGILAW 251 (MP)

Umasharan Sharma v. State of M. P.

2015-03-02

SUJOY PAUL

body2015
ORDER 1. This petition filed under Article 226 of Constitution of India is directed against the order dated 21.9.2013, whereby petitioner's juniors were promoted on the post of Assistant Commandant from the post of Company Commander. The petitioner has also called in question, the order dated 28.12.2013 (Annexure P-1), whereby his representation seeking promotion on the said post is rejected on the ground that he could not achieve the necessary bench-mark. 2. The relevant facts are within a narrow compass. The petitioner contends that he was eligible to be considered from the post of Company Commander to Assistant Commandant, but his consideration was erroneous. 3. Shri Prashant Sharma raised singular contention. He submits that criteria for promotion is “Seniority cum fitness”. The petitioner is admittedly senior to various persons who have been promoted by order (Annexure P-2). The petitioner was not promoted on the singular ground that he could not achieve the bench mark. By taking this Court to the comparative chart (Annexure R-2), it is contended that petitioner's adverse CR for the year 2012 was expunged. After expunging the said CR, no marks were given to the petitioner. If grading **x** is expunged, the respondents are bound to give some better grading than the grading which stood expunged. In that event, petitioner will achieve the desired bench mark. It is contended that respondents have erred in not providing any other grading on deletion of grading **x** . 4. Prayer is opposed by Shri N.S. Kirar, Panel Lawyer for the State. 5. I have heard learned counsel for the parties and perused the record. 6. The respondents have filed the proceedings of the DPC along with their return. The criteria fixed by the DPC (Page 15) shows that the respondents have decided to give marks regarding relevant ACR entry as under : 7. Outstanding – 4, Very Good – 3, Good – 2, Average – 1 and Poor – 0. 8. The bench mark for consideration is fixed as 10 marks. The respondents in Page 3 of the return have stated that the petitioner could secure 9 marks, whereas the minimum 10 marks/bench mark was required to be achieved for consideration and promotion. 9. The comparative chart (Annexure R-2) shows that for the year 2012, the petitioner was given **x** , which was expunged. The respondents in Page 3 of the return have stated that the petitioner could secure 9 marks, whereas the minimum 10 marks/bench mark was required to be achieved for consideration and promotion. 9. The comparative chart (Annexure R-2) shows that for the year 2012, the petitioner was given **x** , which was expunged. It is not clear from the return or from the documents annexed thereto, whether respondents have given any substituted grading after expunging **x** for the year 2012. 10. The comparative chart (Annexure R-2) shows that after expunging the said entry **x** no other entry is substituted in lieu thereof. Needless to mention that on expunging the said entry the ill and adverse effect of **x** gets automatically wiped of. If after deletion of **x** no other suitable entry is substituted, it will have an effect that the employee's record for relevant year will remain with no entry. This situation cannot be accepted. If somebody has entered service and was on the rolls of the department, he deserves a suitable entry in his ACR. This aspect may be examined from yet another angle, if after expunging the entry **x** no other and better entry is substituted, expunction is of no use to the employee. Putting it differently, if even after deletion of adverse entry **x** , petitioner's record remains the same and resultantly he get the same remarks for the relevant year, wiping out of adverse entry will be of no meaning and purpose. Thus, in my view, if an adverse entry is expunged, department is bound to give some other appropriate entry. The employee cannot remain without their being any grading for the particular year. 11. Thus, I find force in the arguments of Shri Prashant Sharma that on deletion of entry **x** , the respondents were bound to substitute it by an appropriate entry. 12. In view of the aforesaid analysis, the petitioner deserves to succeed. The respondents are bound to provide an adequate entry in the confidential report of the petitioner for the year 2012, since admittedly, the petitioner has received 9 marks. If **x** is upgraded, petitioner may achieve the bench mark. The respondents are bound to give adequate entry for the year 2012 and thereafter consider the case of the petitioner if he fulfils the bench mark. 13. If **x** is upgraded, petitioner may achieve the bench mark. The respondents are bound to give adequate entry for the year 2012 and thereafter consider the case of the petitioner if he fulfils the bench mark. 13. Resultantly, the respondents are directed to provide adequate ACR entry for the year 2012 within two months. If petitioner fulfils the bench mark (10 Marks), his case be considered for promotion as on 1.1.2013 by convening a Review DPC. If petitioner is found fit by the Review DPC for promotion as Assistant Commandant, he be given promotion with retrospective effect, from the date his juniors/contemporaries were promoted. The said promotion be given on notional basis. The impugned order (Annexure P-1) is set aside. 14. Petition is allowed to the extent indicated above. 15. No order as to cost.