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2015 DIGILAW 288 (MP)

Tara Chand Soni v. State of M. P.

2015-03-11

K.K.TRIVEDI

body2015
JUDGMENT : K.K. Trivedi, J. 1. This is a second round of litigation in the matter of promotion by the petitioner, who has superannuated from the post of Superintendent Land Records and who was superseded in the matter of promotion while in service. The petitioner while was serving as Revenue Inspector was superseded in the matter of promotion on the post of Assistant Superintendent Land Records. Such an action was challenged by the petitioner by filing an Original Application No. 1586/1993, before the M.P. Administrative Tribunal claiming seniority over and above two persons. The fact remains that the petitioner was promoted on the post of Assistant Superintendent Land Records by order dated 12.3.1992, whereas juniors to him were promoted much before. The said Original Application remained pending when the M.P. Administrative Tribunal was abolished and, therefore, the same was transmitted to this Court where the same was registered as Writ Petition No. 8292/2003. The said petition was decided on 6.11.2008 recording the fact that a review Departmental Promotion Committee (hereinafter referred to as DPC for brevity) was held on 10.11.2006 by the respondents, but in the said review DPC also the case of the petitioner was not properly considered. The writ petition was disposed of with a direction to decide the case of the petitioner for promotion after considering the same in terms of the criteria laid down by the DPC dated 26.5.1981. It is the case of the petitioner that the said review DPC has also not considered the Annual Confidential Reports (hereinafter referred to as the ACRs for brevity) of the petitioner properly and has illegally superseded him, therefore, this writ petition is required to be filed. 2. The respondents have filed a return contending inter alia that in terms of the order dated 6.11.2008 passed in W.P. No.8292/2003, the review DPC was held. It was found that the petitioner was not fulfilling the criteria laid down by the DPC dated 26.5.1981 and, therefore, he was not found fit for promotion on the post of Assistant Superintendent Land Records with retrospective effect, from the date his juniors were promoted. Since there was no question of fixation of seniority once again, there was again no question to consider the case of petitioner for further promotion on the post of Superintendent Land Records as was done in case of his juniors. Since there was no question of fixation of seniority once again, there was again no question to consider the case of petitioner for further promotion on the post of Superintendent Land Records as was done in case of his juniors. It is contended that the ACRs of the petitioner were not found upto the marks and, therefore, he was rightly superseded by the DPC. 3. While addressing this Court, learned counsel for the petitioner has drawn attention to the stand taken by the respondents in the earlier return filed in W.P. No.8292/2003. It is contended by learned counsel for the petitioner that the same stand is taken once again whereas, the ACRs which the petitioner has placed on record of this writ petition indicate that his grading were reduced by the final authority without any justified reason. The said change in the grading was not appreciated by the DPC in appropriate manner and it was wrongly held that the petitioner was not fit for promotion. Taking this Court to the ACR of the year ending 31.3.1976, 31.3.1977 and 31.3.1978, it is contended by learned counsel for the petitioner that change in the gradings by the final authority was to be examined by the DPC, overall assessment of the petitioner was to be done for those ACRs and then the consideration should have been done by the DPC. Placing much stress on the change of gradings by the final authority in the ACRs of the petitioner for the aforesaid years, it is contended that in case the change is made without any justified reason or even recording the reasons, such change was not to be allowed and reassessment of the ACRs was required to be done by the DPC. 4. It is contended by learned Panel Lawyer that such was not the case of the petitioner on earlier occasion, therefore, the review DPC was not required to reassess the ACRs of the petitioner or to consider his case after regrading the ACRs. This being so, the claim made by the petitioner is misconceived and the petition is liable to be dismissed. 5. Heard learned counsel for the parties at length and perused the record. 6. The sole controversy is in respect of recording of the ACRs and making of gradings in the said ACRs of the petitioner. This being so, the claim made by the petitioner is misconceived and the petition is liable to be dismissed. 5. Heard learned counsel for the parties at length and perused the record. 6. The sole controversy is in respect of recording of the ACRs and making of gradings in the said ACRs of the petitioner. The importance of writing of ACR of the employee is highlighted on various occasion by the Court of law. In fact, in the Service Jurisprudence, the manner of writing of ACRs has the paramount importance as the entire service career of an employee is dependent on writing of the ACRs. Grant of increments, grant of promotion, grant of other service benefits are all dependent on the gradings of the ACRs. Time and again, the State Government has issued the circulars directing all the competent authorities to initiate the ACRs in appropriate manner and directing the reviewing and final authorities to record their reasons for change in the gradings of ACRs. In the recent past, the manner of writing of ACR is also changed as now the initiation of ACRs are on the self appraisal report of the employee concerned. It was considered on various occasions that if the immediate commanding officer while initiating the ACR has given the 'Good' remark appreciating the working of an employee which he has personally supervised, the reviewing authority and the final authority, who have seldom any occasion to see the work of employee concerned, are not required to make any change in the said grading unless for the reasons recorded in writing. In the case of P.K. Shastri Vs. State of M.P. and others [ (1999) 7 SCC 329 ] while considering the importance of the writing of ACRs, the Apex Court has categorically recorded that for a single reason, the ACRs should not be made adverse, to mar the entire service career of an employee. 7. In the context of the aforesaid while change in the ACRs were considered by the Apex Court in the case of U.P. Jal Nigam and others Vs. 7. In the context of the aforesaid while change in the ACRs were considered by the Apex Court in the case of U.P. Jal Nigam and others Vs. Prabhat Chand Jain and others ( AIR 1996 SC 1661 ), it was categorically held by the Apex Court that if an ACR though is not adverse, is coming in the way of promotion of an employee, it has to be treated as adverse and the same is required to be communicated to the employee concerned. Again in the case of U.P. Jal Nigam Vs. S.C. Atri and another ( AIR 1999 SC 3362 ) considering all these aspects while expunging the adverse entry in the ACR, the Apex Court has directed promotion of the employee with retrospective effect. These aspects have mainly been considered and reiterated by the Apex Court in the case of Dev Dutt Vs. Union of India and others ( AIR 2008 SC 2513 ). 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 the working of the petitioner 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 petitioner 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 of the year 1977 and 1978. The initiating 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 graded the petitioner as 'Good' then grading of the ACR was to be treated as 'Good'. 9. On one occasion, the Collector himself has written that he was agreeing with the assessment made by the Tahsildar. If the said Tahsildar has graded the petitioner as 'Good' then grading of the ACR was to be treated as 'Good'. 9. Notably the DPC was to be held in the year 1981 for such promotion and the petitioner was in the zone of consideration. The fact that criterias were to be fixed by the DPC for grant of such promotion, and the ACRs of petitioner were constantly of 'Average' category according to the respondents themselves, therefore, they ought to have intimated the petitioner about such grading at that relevant point of time so that the petitioner if not satisfied with the said grading, could have represented for restoration of his original grading or expunging of those remarks. Nothing was done in that respect and, therefore, merely on the basis of such down graded ACRs, the petitioner was not required to be denied promotion. Nothing is indicated by the respondents in their return that the DPC had considered the ACRs of the petitioner after revaluating the same. Mechanically whatever statement was placed before the members of the DPC, was accepted by them and even after review of the DPC, the petitioner was said to be not found fit for grant of promotion with retrospective effect even when his juniors were promoted. 10. Now no debate is necessary to consider, whether the DPC is competent for reassessment of the grading in ACRs of an employee concerned or not, no debate is necessary as when on earlier occasion, the instructions in that respect were issued by the State Government, judicial review of such consideration was already done by the Courts of law and now by making the M.P. Public Service (Promotion) rules, 2002, such assessment by DPC is made a statutory provision. Therefore, it was necessary on the part of the respondents to reassess the grading of the ACRs of the petitioner since there were down grading in the concerned ACRs specially those which were required to be taken into consideration by the DPC for promotion. Accordingly, the stand taken by the respondents that the petitioner was properly considered by the review DPC and was again not found fit for promotion with retrospective effect, cannot be accepted. 11. In view of the above discussions, the writ petition is allowed. Accordingly, the stand taken by the respondents that the petitioner was properly considered by the review DPC and was again not found fit for promotion with retrospective effect, cannot be accepted. 11. In view of the above discussions, the writ petition is allowed. The impugned communication of result of the review DPC is hereby quashed. The matter is remitted back to the DPC to reassess the gradings of the petitioner in the concerned ACR and to regrade them and to review the case of the petitioner for grant of promotion in terms of the norms adopted by the DPC dated 26.5.1981, and in case the petitioner is found fit for grant of such promotion, to issue necessary orders for promotion of the petitioner with retrospective effect, with all the consequential benefits of such promotion. Needless to say, since it was already ordered by this Court on earlier occasion that in case any junior to the petitioner was further promoted on higher post, review of the case of petitioner for grant of such promotion be also done in terms of the aforesaid order, and in case the petitioner is found fit, to grant all the benefits of such promotion with retrospective effect with all consequential benefits. Let this exercise be completed within a period of four months from the date of order. Since the petitioner has retired now, in case of promotion and grant of consequential benefits, his pensionary claims be also revised accordingly. 12. The writ petition is allowed to the extent indicated herein above. There shall be no order as to costs.