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2015 DIGILAW 463 (MP)

State of M. P. v. Anil Kesharwani

2015-04-22

MOOL CHAND GARG, RAJENDRA MENON

body2015
ORDER Menon, J. -- 1. Challenging the order dated 1.10.2013 passed by the learned writ Court in Writ Petition No.4481/2007(s) directing a review DPC to be convened and consider the case of the petitioner for promotion as it existed on 24.11.2004 when the original DPC met and while doing so not to consider a adverse CR not communicated to the petitioner for the year ending 2002, this writ appeal has been filed by the State Government. 2. The only ground canvassed at the time of hearing was that even if the adverse CR for the year 2002 was not communicated then in view of the law laid down in the case of Dev Dutt v. Union of India and others [ AIR 2008 SC 2513 ], followed in the case of Sukhdev Singh v. Union of India and others [ (2013)9 SCC 566 ], learned Single Judge should have directed the State Government to communicate the ACR, seek representation from the petitioner decide the representation for upgradation or otherwise and thereafter place the matter before the review DPC. Ignoring this principle of law directing the review DPC, to ignore the ACR, according to learned counsel for the State was not proper nor in conformity with the principles of law laid down, therefore, this writ appeal has been filed. 3. Per contra, Shri Manoj Sharma invites our attention to the judgment of Supreme Court in the case of Abhijit Ghosh Dastidar v. Union of India and others [ (2009)16 SCC 146 ], and submitted that if the ACR was not communicated to the petitioner then it is not to be taken into consideration for the purpose of promotion to the higher grade by the review DPC. Shri Sharma invites our attention to the observations made in the aforesaid judgment in para 8 after taking note of the law laid down in the case of Dev Dutt (supra), and argues that now in the facts and circumstances of the present case particularly when the ACR was not communicated for all this period for more than 13 years the direction issued by the writ Court needs to be upheld and the same does not call for any interference. 4. 4. We have heard learned counsel for the parties as pointed out by Shri Pushpendra Yadav, the Hon'ble Supreme Court in the case of Dev Dutt (supra), and subsequently when the matter was again considered in the case of Abhijit Ghosh Dastidar (supra), the matter was so decided by the Supreme Court :- 8. Coming to the second aspect, that though the benchmark "very good" is required for being considered for promotion admittedly the entry of "good" was not communicated to the appellant. The entry of 'good' should have been communicated to him as he was having "very good" in the previous year. In those circumstances, in our opinion, non-communication of entries in the ACR of a public servant whether he is in civil, judicial, police or any other service (other than the armed forces), it has civil consequences because it may affect his chances for promotion or get other benefits. Hence, such noncommunication would be arbitrary and as such violative of Article 14 of the Constitution. The same view has been reiterated in the above referred decision relied on by the appellant. Therefore, the entries "good" if at all granted to the appellant, the same should not have been taken into consideration for being considered for promotion to the higher grade. The respondent has no case that the appellant had ever been informed of the nature of the grading given to him. (Emphasis Supplied) 5. In this case there is a specific direction to ignore the entry and consider the case of the employee concerned for promotion to the higher post. The directions issued by the learned writ Court is in conformity with the aforesaid principle laid down by the Supreme Court and in this case also, now when the adverse entry were made in the year 2002 and when they were not communicated for more than 13 years, we see no reason to interfere into the matter, particularly when the Supreme Court permits such a procedure to be followed as indicated herein abovein the case of Abhijit Ghosh Dastidar (supra). 6. Accordingly, finding no case made out for any further indulgence into the matter, we dismiss this appeal. ...............