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Madhya Pradesh High Court · body

2016 DIGILAW 1052 (MP)

Rajendra Kumar Verma v. State of M. P.

2016-11-21

ROHIT ARYA

body2016
ORDER 1.This writ petition under Article 226/227 of the Constitution of India by a Deputy Commandant (Additional Superintendent of Police), II Battalion, SAF is directed against rejection of the grant for selection grade as on 1.1.2010 by the DPC convened on 29.11.2013 communicated to the petitioner, on 15.9.2016 under the Right to Information Act. 2. Facts shorn of necessary details are to the effect that for grant of selection grade on the post of Additional Superintendent of Police,the criteria is fixed in the circular issued by the Home Department, State of Madhya Pradesh No.1(B)124/13/B-4/Do for the DPC proceedings and the bench mark is ‘13’. The relevant part in paragraph 6 (1) and (3) are reproduced below:- ^^¼6½ izoj Js.kh osrueku Lohd`r fd, tkus gsrq Nkuchu lfefr }kjk fuEukuqlkj ekinaM viuk, x, %& 1- ik¡p o"kksZ ds xksiuh; izfrosnuksa esa dksbZ xaHkhj izfrdwy Vhdk vafdr u gks rFkk fdlh Hkh o"kZ esa ^^?k** Js.kh ugha gksuk pkfg,A 2- ------------- 3- fiNys ik¡p o"kksZ ds xksiuh; izfrosnuksa ds ewY;kadu ds fy, Js.kh ^^d** dks 04 ^^d** dks 03 vad] **[k** dks 02] ^^x** dks 01 rFkk ^^?k** dks 0 vad fu/kkZfjr fd, x, gSA izoj Js.kh osrueku ds fy, mi;qDrrk gsrq 05 o"kksZ dks lexz ewY;kadu de ls de 13 vad gksuk pkfg,A** 3. The preceding five years ACRs are of the years 2005 to 2009. As per chart prepared and annexed with the counter affidavit as Annexure R-2 by the respondents, the petitioner’s name appears at Sl.No.187. He is shown to have been awarded following marks during the period at issue as follows:- Year ending 2005 Year ending 2006 Year ending 2007 Year ending 2008 Year ending 2009 Grade B (2 Marks) Grade A (3 Marks) Grade B (2 Marks) Grade B (2 Marks) Grade A (3 Marks) Total = 12 Marks As a result, since the petitioner fell short of ‘1’ mark from the bench mark ‘13’, the selection grade has been denied. 4. Learned counsel for the petitioner contends that for the period from 1.4.2006 to 31.3.2007, the petitioner was awarded ‘Good’ - ‘B’ by the immediate superior officer, the Superintendent of Police, Datia. The DIG, Chambal Range, Gwalior as reviewing officer did not agree with the remark of the Superintendent of Police and upgraded the same as “Very Good” awarding him Grade “A”. The DIG, Chambal Range, Gwalior as reviewing officer did not agree with the remark of the Superintendent of Police and upgraded the same as “Very Good” awarding him Grade “A”. The grading of the DIG was approved by the IG, SAF (with additional charge of Chambal Range). However, to his utter surprise, the Director General of Police, Madhya Pradesh, Bhopal down-graded the petitioner as “B” with remark that he has agreed with the remark of the Superintendent of Police. 5. Learned counsel for the petitioner submits that but for the adverse remark of the Director General of Police, M.P., Bhopal down-grading the petitioner from “A” to ‘B’, the petitioner could have been granted the selection grade as upon calculation, the aggregate shall come to ‘13’ at par with the bench mark. 6. Learned counsel for the petitioner contends that downgrading of the remark by the Director General of Police, M.P., Bhopal, as such, tantanmounts to adverse remark/weak remark resulting into grave prejudice to the petitioner’s right to acquire selection grade, on the post of Additional Superintendent of Police. Under the circumstances,the Director General of Police, M.P., Bhopal was under statutory obligation to communicate the petitioner aforesaid remark of down-grading before the same could have been acted upon for any purpose including for denial of the selection grade to the petitioner by the DPC. That has not been done. Consequently, the petitioner has been subjected to unlawful denial of selection grade violating his fundamental rights guaranteed under Articles 14 and 16 of the Constitution of India. He has placed reliance on the decision of the Hon’ble Supreme Court in the case of Dev Dutt v. Union of India and others [ (2008)8 SCC 725 ], to bolster his submission. 7. Per contra, Smt. Ami Prabal, Deputy Advocate General supports the action of the respondents denying the selection grade to the petitioner as Additional Superintendent of Police. By referring to the chart, Annexure R-2, it is contended that as the petitioner fell short of ‘1’ mark from the bench mark fixed in the criteria, therefore, the denial of selection grade cannot be faulted with. By referring to the chart, Annexure R-2, it is contended that as the petitioner fell short of ‘1’ mark from the bench mark fixed in the criteria, therefore, the denial of selection grade cannot be faulted with. She further contends that though DIG and IG vide Annexure P-5 have awarded “A” grade to the petitioner but the Director General of Police, Bhopal being head of the department since had recorded “B” grade agreeing with the remark of the Superintendent of Police and Collector, no exception thereto can be taken. It is prayed that the writ petition deserves to be dismissed. 8. Heard learned counsel for the parties. 9. The concept of adverse remark in the confidential rolls of a public servant and obligation of the authority writing ACR to make communication of such remark to the delinquent, as a matter of fact, has gone noticeable and substantial changes through the process of judge-made law by way of various pronouncements by the Hon’ble Supreme Court and High Courts. The rule now is that the remarks awarded to a delinquent per se is not conclusive and determinative as regards its nature but the impact thereof to the prospects of a delinquent in his service tenure. In other words, the remark by itself may not be adverse in nature by the literal meaning of the word ‘adverse’ but if the consequences flowing therefrom have prejudicial effect on service prospects of the delinquent, the same has been held to be ‘adverse’ in nature. Therefore, such remarks are liable to be communicated to the delinquent before the same are acted upon to the prejudice of the delinquent. The aforesaid proposition of law has been lucidly and vividly explained by the Hon’ble Supreme Court in the case of Dev Dutt (supra), the relevant portion reads as under : “In this situation the “good” entry is in fact an adverse entry because it eliminates the candidate from being considered for promotion. Nomenclature is not relevant, it is the effect which the entry is having which determines whether it is an adverse entry or not. It is thus the rigorous of the entry which is important, not the phraseology. Grant of a “good” entry is of no satisfaction to an incumbent if it in fact makes him ineligible for promotion or has an adverse effect on his chances. It is thus the rigorous of the entry which is important, not the phraseology. Grant of a “good” entry is of no satisfaction to an incumbent if it in fact makes him ineligible for promotion or has an adverse effect on his chances. “Good” entry should have been communicated to the appellant so as to enable him to make a representation praying that the said entry for the year 1993-94 should be upgraded from “good” to “very good”. After considering such a representation it was open to the authority concerned to reject the representation and confirm the “good” entry (though in fair manner), but at least an opportunity of making such a representation should have been given to the appellant, and that would only have been possible had the appellant been communicated ‘good’ entry. Non-communication of ‘good’ entry was arbitrary and hence illegal.” 10. In the instant case, admittedly, for the year ending 2007, the reviewing officers, DIG and IG, Chambal Range, the intermediary authorities have awarded “A” grade to the petitioner; disagreeing with “Good” (‘B grade’) awarded by the Superintendent of Police, Datria and maintained by the District Collector. If the Director General of Police, Bhopal, intended to restore the remark grade ‘B” awarded by the Superintendent of Police, in all fairness, was required to afford an opportunity to the petitioner against award of grade ‘B”. That has not been done. As a result, the DPC has acted upon such uncommunicated remark recorded for the year ending 2007 and awarded him ‘2’ marks in the DPC proceedings. Hence, the petitioner has fallen short of ‘1’ marks to get the benefit of selection grade. It is, therefore, crystal clear that because of adverse remark/weak remark and grading awarded by the Director General of Police, M.P., Bhopal petitioner is denied to acquire selection grade. Hence, in the opinion of this Court, the petitioner has been subjected to uncommunicated adverse in violation of Articles 14 and 16 of the Constitution of India. Consequently, writ petition is allowed. At this stage, the question arises as to what nature of relief can be granted to the petitioner? 11. Learned counsel for the petitioner relying on the judgment of the Hon’ble Supreme Court in the case of Prabhu Dayal Khandelwal v. Chairman, U.P.S.C. and others [2015 AIR SCW 4417], relevant paragraphs 7, 8 and 9 quoted below : “7. At this stage, the question arises as to what nature of relief can be granted to the petitioner? 11. Learned counsel for the petitioner relying on the judgment of the Hon’ble Supreme Court in the case of Prabhu Dayal Khandelwal v. Chairman, U.P.S.C. and others [2015 AIR SCW 4417], relevant paragraphs 7, 8 and 9 quoted below : “7. In the above view of the matter, we are satisfied that the impugned order passed by the High Court, deserves to be set aside, inasmuch as, the claim of the appellant could not be ignored by taking into consideration, uncommunicated Annual Confidential Reports for the years 1995-1996, 1996-1997 and 1998-1999, wherein the appellant was assessed as “good”. In the absence of the aforesaid entries, it is apparent, that the remaining entries of the appellant being “very good”, he would be entitled to be considered fit for the promotion, to the post of Chief Commissioner of Income Tax, on the basis of the then prevailing DoPT guidelines, and the remaining valid Annual Confidential Reports. 8. On the issue, whether the representations filed by the appellant against the Reports for the years 1995-1996, 1996-1997 and 1998-1999 need to be taken to their logical conclusion, we are of the view, that since almost two decades have passed by since the aforesaid Annual Confidential Reports were recorded, it would be too late in the day to require the authorities to adjudicate upon the representations made by the appellant as against the uncommunicated Annual Confidential Reports. 9. In the above view of the matter, we are satisfied, that the respondents ought to be directed to reconsider the claim of promotion of the appellant, to the post of Chief Commissioner of Income Tax, for the vacancies which arose during the years 2000-2001 and 2001-2002 on the basis of the communicated reports for the years 1997-1998 and 1999-2000, within a period of three months from today. Ordered accordingly.” contends that in the instant case the grading/weak remark of the petitioner since has been found to be vulnerable by this Court in the ACR for the year ending 2007 and more than 09 years’ period has passed by, much water has flown under the bridge and almost a decade period has passed by. As such, petitioner has been made to suffer for such a long period of time for no wrong on his part. As such, petitioner has been made to suffer for such a long period of time for no wrong on his part. Ex facia, the action of the Director General of Police, M,.P., Bhopal is arbitrary in nature. Even otherwise, there is no reason or justification assigned for not agreeing with the remarks of the DIG, and IG, while down-grading the remark awarded by them from “A” to ‘B’. It is further submitted that no useful purpose would be subserved if the ‘clock is set back’ by ordering for communication of remark, grade ‘B’ and thereafter making representation by the petitioner for consideration of the same and decision thereon by the respondents. As such, this Court may consider and order to treat the grading as “A” in the ACR for the year ending 2007 and award “1 (one)” more mark, total “3” marks with command the respondents for grant of the selection grade to the petitioner as on 1.1.2010. 12. Per contra, Smt. Ami Prabal, Deputy Advocate General contends that true it is that the Director General of Police, Madhya Pradesh, Bhopal has graded the petitioner ‘B’ in contrast to the grading awarded by the DIG and IG granting him “A” grade, the petitioner may be given an opportunity to represent against the same and it is only upon consideration and decision thereupon, the grading awarded by the Director General of Police, M.P., Bhopal may be ordered to be substituted and if eligible, the review DPC may be ordered to be convened. 13. Heard learned counsel for the parties on the question of relief. 14. This Court finds substantial force in the submission made by learned counsel for the petitioner in that behalf. Almost, a decade period has passed by ever since the petitioner has been graded as ‘B’ in the ACR for the year ending 2007. There is no justification indicated by the Director General of Police for downgrading him from “A” to ‘B’. This Court cannot lose sight of the fact that DIG and IG are senior police officers of the State, therefore, before disagreeing with the grading awarded by them as reviewing officers, the Director General of Police had not acted bona fide as the minimum requirement of justification for substitution of down-grading him as ‘B’ could have been recorded. This Court cannot lose sight of the fact that DIG and IG are senior police officers of the State, therefore, before disagreeing with the grading awarded by them as reviewing officers, the Director General of Police had not acted bona fide as the minimum requirement of justification for substitution of down-grading him as ‘B’ could have been recorded. Further, under the circumstances if the petitioner is relegated back to the stage for consideration of the representation after the remark is communicated to him at this distance of time, it shall be a traversity of justice and, therefore, complete justice can be done by holding the grading awarded by the DIG and IG, the reviewing officers as “A” as final and conclusive in exercise of the equitable jurisdiction of this Court under Article 226 of the Constitution of India bearing in mind the law laid down by the Hon’ble Supreme Court in the case of Prabhu Dayal Khandelwal (supra). 15. Consequently, it is held that the grading “A” in the ACR for the year ending 2007 as awarded by the DIG and IG is upheld. It is directed that the respondents shall now convene review DPC within 08 (eight) weeks from today to decide the claim of the petitioner for selection grade as Additional Superintendent of Police with effect from 1.1.2010 taking into consideration the ACRs for the years ending 2005 to 2009 as per citations referred above and if found entitled, extend the benefits within the same period, in accordance with law. 16. With the aforesaid direction, writ petition stands allowed and disposed of.