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Madhya Pradesh High Court · body

2016 DIGILAW 368 (MP)

Shyam Kishore Dixit v. State of M. P.

2016-05-03

ANAND PATHAK

body2016
ORDER With the consent of parties matter is finally heard. 1. The petitioner in this petition has assailed the order dated 22.1.2014 passed by the Engineer-inchief, Rural Engineering Services by Annexure P-1 wherein the representation of petitioner in pursuance to the order passed in Writ Petition No.7724/2013 has been rejected. Through the said representation, petitioner has sought promotion from the post of Sub-Engineer to the post of Assistant Engineer in respondent No.1 department. 2. As per the submission of petitioner, he was appointed as Sub-Engineer in Rural Engineering Services Department on 9.1.1983. Further submission of the petitioner is that his name was reflected at serial No.355 in the gradation list issued by the department as on 1.4.2014. As per the fit list issued by the Development Commissioner on 5.2.2012, petitioner was at serial No.120 and was fit for consideration for promotion. On 29.8.2013 the Departmental Promotion Committee was convened but did not consider the case of petitioner and found him unfit for promotion because of not fulfilling the criterion/benchmark prescribed by the Departmental Promotion Committee (DPC). On 3.10.2013 promotion list has been issued by the department, ignoring the claim of the petitioner for promotion and junior officers to the petitioner have been promoted. Being aggrieved by such non consideration, the petitioner preferred a writ petition vide No.7724/2013 which was disposed of with a direction to the respondents to consider the claim of petitioner for promotion vide order dated 28.10.2013. In pursuance to the said order, the petitioner preferred a representation dated 5.11.2013 which in turn got rejected by the impugned order dated 22.1.2014 (Annexure P-1). Petitioner has attached copy of his ACRs from 2007-08 to 2011-12 vide Annexure P-9 collectively obtained under the Right to Information Act, 2005, which were before DPC for consideration. 3. Perusal of ACR pertaining to 2007-08 reflects that his reporting officer (SDO, Rural Engineering Services) has given him excellent (A+) which was approved by the reviewing officer (Executive Engineer, Rural Engineering Services) but downgraded by the accepting officer (Superintending Engineer, Rural Engineering Services) to category ‘B’ (good). The reason assigned for the said downgrading was less knowledge of English. 4. In the ACR of 2008-09, again the SDO given excellent (A+), approved by the Executive Engineer but downgraded by the same person to ‘A’ (very good). The said downgrading was again made without any cogent reason or explanation. 5. The reason assigned for the said downgrading was less knowledge of English. 4. In the ACR of 2008-09, again the SDO given excellent (A+), approved by the Executive Engineer but downgraded by the same person to ‘A’ (very good). The said downgrading was again made without any cogent reason or explanation. 5. In the ACR of 2009-10, the SDO has given very good (A), approved by the Executive Engineer but the same person who was working as Superintending Engineer, Rural Engineering Services, downgraded to ‘B’ for no cogent reason. 6. In the ACR of 2010-11 a peculiar situation has cropped up wherein initially ‘A+’ was given to the petitioner and the said endorsement find place just below ‘A+’ wherein tick mark has been issued over Excellent Category but later on it seems that ‘A+’ has been downgraded to ‘A’ and both the authorities i.e. Executive Engineer as well as Superintending Engineer, Rural Engineering Services showed their approval. According to petitioner, the said grading was ‘A+’ and still it would be treated as A+ but without any rhyme and reason, the Executive Engineer and Superintending Engineer have downgraded it to ‘A’. According to the petitioner, this peculiarity of behaviour cannot be explained by the respondents in any term. 7. In the ACR pertaining to 2011-12, petitioner again performed well and he was given ‘A+’ by the SDO which was approved by the Executive Engineer but again downgraded by the Superintending Engineer to the category ‘B’. The reason assigned for downgrading is again self-contradictory. 8. The main thrust of the arguments of the petitioner is that the said ACRs reflect that the petitioner is a sincere, honest and diligent worker but has been unduly targeted by the authorities and in the ACR of 2010-11, the grading was given as excellent which is denoted by the tick mark put over excellent category but some how the said excellent category has been reduced to very good. 9. Further argument of the petitioner is that despite downgrading the petitioner’s grade, time and again; the respondents have not intimated the petitioner regarding such downgrading, therefore, he did not have any chance to improve his performance, if any required by the respondents. 9. Further argument of the petitioner is that despite downgrading the petitioner’s grade, time and again; the respondents have not intimated the petitioner regarding such downgrading, therefore, he did not have any chance to improve his performance, if any required by the respondents. Although according to the petitioner, his sincerity and working have always been to the utmost satisfaction of the authorities and he always performed his duties diligently and honestly and always completed the task assigned to him in a proper manner. According to the petitioner, the law laid down in the case of Dev Dutt v. Union of India and others [ (2008)8 SCC 725 ], petitioner is entitled for the relief by way of promotion to the post of Assistant Engineer from the date when his juniors have been promoted. 10. Per contra, the respondents have filed their reply and contested the case by saying that petitioner did not fulfill the benchmark as prescribed by the DPC therefore, the DPC has not found him fit for promotion for the post of Assistant Engineer, therefore, the impugned order has rightly been passed. According to the respondents, ACRs of the petitioner were not in accordance with the norms of DPC for consideration for promotion. The respondents have narrated the grade acquired by the petitioner from year 2007-08 till 2011-12 and on the basis of entries in the ACRs tried to contend that the petitioner is not entitled for any relief in respect of promotion. The respondents have attached the circular dated 29.6.1991 vide Annexure R-1 and contended that the State Government has issued the circular dated 29-06-1991 in this regard and no arbitrariness and illegality has been caused to the petitioner. 11. The respondents have further submitted that the DPC has prescribed 13 and above benchmarks and petitioner had only 12 benchmarks in the concerned period, therefore, he could not be considered for promotion and those officers; who acquired 13 and above benchmarks; were promoted. In short, the respondents contested the case and prayed for dismissal of the petition. 12. Heard learned counsel for the parties and with their assistance perused the record. 13. From perusal of record, it is clear that the petitioner constantly received excellent grades by his reporting officer who happens to be the authority who monitors day to day performances of an employee at shop floor level/ground level. 12. Heard learned counsel for the parties and with their assistance perused the record. 13. From perusal of record, it is clear that the petitioner constantly received excellent grades by his reporting officer who happens to be the authority who monitors day to day performances of an employee at shop floor level/ground level. The assessment made by the reporting officer is of paramount importance in the series of authorities which assessed the performance of an employee for the purpose of writing ACR. Therefore, the assessment of reporting officer cannot be overlooked or ignored by the reviewing officer or accepting officer in a casual manner. Objectivity is required to disagree with the assessment of the reporting officer so as to reach to a conclusion about the exact performance of an employee. The said authority has always graded him as Excellent except in 2009-10. The reporting officer found him four times as excellent performer but interestingly or surprisingly, the accepting authority has downgraded the grade of petitioner. The said attempt on the part of Superintending Engineer/accepting authority in such subjective manner substantiates the apprehension of petitioner. Besides that, one entry of ACR of 2010-11 gives contradictory findings wherein he has been adjudged as Excellent performer but gave ‘Ka’ (A) only. Entry at page 57 of the writ petition in Annexure P-9 reveals such peculiar situation. 14. Petitioner in his petition has annexed the proceedings of the DPC dated 29.8.2013 vide Annexure P-11, wherein the benchmark has been prescribed as 13 or above. In para 7 of the DPC proceedings, this fact has been acknowledged by the respondents also. It is also an admitted fact that the petitioner has acquired 12 marks in last 5 years’ ACRs and if he would have received one mark then he would have also been considered for promotion. From the record, it appears that accepting officer has downgraded the grade of petitioner in a very casual manner and his assessment of performance of petitioner, lacked objectivity. 15. Respondents have to come out from the colonial past and should avoid using Annual Confidential Reports as a tool to settle scores. 16. Adding salt to the injuries, the respondents have not taken care of intimating the petitioner about such downgrading for giving any chance to the petitioner to represent his case either to improve his performance year by year and/or to make representation narrating/disclosing his part of truth. 16. Adding salt to the injuries, the respondents have not taken care of intimating the petitioner about such downgrading for giving any chance to the petitioner to represent his case either to improve his performance year by year and/or to make representation narrating/disclosing his part of truth. The said non supply of intimation of downgrading to the petitioner adds misery to the petitioner ending up in denial of promotion. The said action of respondents is deprecated by the apex Court in a series of judgments including Dev Dutt (supra), as well as Sukhdev Singh v. Union of India and others [ (2013)9 SCC 566 ]. Following paras of the judgment of Dev Dutt (supra), needs emphasis : “17. In our opinion, every entry in the ACR of a public servant must be communicated to him within a reasonable period, whether it is a poor, fair, average, good or very good entry. This is because non-communication of such an entry may adversely affect the employee in two ways : (1) Had the entry been communicated to him he would know about the assessment of his work and conduct by his superiors, which would enable him to improve his work in future. (2) He would have an opportunity of making a representation against the entry if he feels it is unjustified, and pray for its upgradation. Hence non-communication of an entry is arbitrary, and it has been held by the Constitution Bench decision of this Court in Maneka Gandhi v. Union of India (supra), that arbitrariness violates Article 14 of the Constitution. 18. Thus it is not only when there is a benchmark but in all cases that an entry (whether it is poor, fair, average, good or very good) must be communicated to a public servant, otherwise there is violation of the principle of fairness, which is the soul of natural justice. Even an outstanding entry should be communicated since that would boost the morale of the employee and make him work harder. 22. It may be mentioned that communication of entries and giving opportunity to represent against them is particularly important on higher posts which are in a pyramidical structure where often the principle of elimination is followed in selection for promotion, and even a single entry can destroy the career of an officer which has otherwise been outstanding throughout. 22. It may be mentioned that communication of entries and giving opportunity to represent against them is particularly important on higher posts which are in a pyramidical structure where often the principle of elimination is followed in selection for promotion, and even a single entry can destroy the career of an officer which has otherwise been outstanding throughout. This often results in grave injustice and heartburning, and may shatter the morale of many good officers who are superseded due to this arbitrariness, while officers of inferior merit may be promoted. 37. We further hold that when the entry is communicated to him the public servant should have a right to make a representation against the entry to the concerned authority, and the concerned authority must decide the representation in a fair manner and within a reasonable period. We also hold that the representation must be decided by an authority higher than the one who gave the entry, otherwise the likelihood is that the representation will be summarily rejected without adequate consideration as it would be an appeal from Caesar to Caesar. All this would be conducive to fairness and transparency in public administration, and would result in fairness to public servants. The State must be a model employer, and must act fairly towards its employees. Only then would good governance be possible. 41. In our opinion, non-communication of entries in the Annual Confidential Report of a public servant, whether he is in civil, judicial, police or any other service (other than the military), certainly has civil consequences because it may affect his chances for promotion or get other benefits (as already discussed above). Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution.” 17. In view of the above, the impugned communication dated 22.1.2014 Annexure P-1 is hereby set aside. Petitioner is directed to submit a representation to respondents afresh elaborating all the necessary events and respondents would be duty bound to consider the representation of petitioner in the light of judgments of Dev Dutt (supra), and Sukhdev Singh (supra), as well as the findings given by this Court above. After appropriate decision over the representation being taken by the respondents, if petitioner is found eligible otherwise and in all respects, then the review DPC may be convened for consideration of case of petitioner for promotion retrospectively, in accordance with law. After appropriate decision over the representation being taken by the respondents, if petitioner is found eligible otherwise and in all respects, then the review DPC may be convened for consideration of case of petitioner for promotion retrospectively, in accordance with law. The whole exercise be completed within four months from the date of receipt of certified copy of this order. 18. Petition is allowed accordingly.