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2016 DIGILAW 544 (MP)

Union of India v. M. S. Gill

2016-07-12

ANURAG SHRIVASTAVA, RAJENDRA MENON

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ORDER 1. The petitioner Union of India has called in question in this writ petition filed under Article 227 of the Constitution of India tenability of an order passed on 24.11.2014 by Central Administrative Tribunal, Jabalpur, wherein the application filed by the respondent under section 19 of the Administrative Tribunals Act, 1985, has been allowed and directions have been issued to grant retrospective promotion on the post of Superintendent from 8.3.2001. 2. On account of certain remarks in the Annual Confidential Report of the employee for the year 1992-93, 1998-99 and 1999-2000 grading him “just adequate” the Departmental Promotion Committee which met in 2000 did not recommend him for promotion. However he was granted promotion in the year 2004 retrospectively w.e.f. 26.12.2002 and it was his case before the Tribunal that remark “just adequate” for 3 years is an adverse remark and in view of the law laid down by the Supreme Court in the case of Dev Dutt v. Union of India [ (2008)8 SCC 725 ], Abhijeet Ghosh Dastidar v. Union of India and others [ (2009)16 SCC 146 ], non communication of these ACRs rendered the proceedings of Departmental Promotion Committee illegal and therefore he should be granted promotion at par with his juniors ignoring his ACR. The same prayer having been allowed the Union of India is before this Court in this petition under Article 227 of the Constitution of India. 3. The learned counsel for petitioners took us through the judgment of Dev Dutt and Abhijeet Ghosh Dastidar (supra), and recent judgment of Supreme Court in Sukhdev Singh v. Union of India (Civil Appeal No.5892 of 2006) decided on 23.4.2013 to canvass a contention that in the light of the law laid down by the Supreme Court in the case of Dev Dutt and Abhijeet Ghosh Dastidar (supra), the order passed by learned Tribunal is unsustainable. The learned Tribunal should have remanded the matter back to the Departmental Promotion Committee for reconsideration after deciding the representation on the ACR, and could not grant promotion to the respondent by the order impugned. 4. The learned Tribunal should have remanded the matter back to the Departmental Promotion Committee for reconsideration after deciding the representation on the ACR, and could not grant promotion to the respondent by the order impugned. 4. On the contrary Shri Manoj Sharma, learned counsel appearing for respondent/employee invited our attention to para 8 of the findings recorded by Hon'ble Supreme Court in the case of Abhijeet Ghosh Dastidar (supra), and the fact that petitioner had already retired in the year 2014, he has already been granted him promotion w.e.f. 26.12.2002 and the Tribunal had only granted promotion w.e.f. 8.3.2001 after taking into consideration all the circumstances and law laid down in the case of Abhijeet Ghosh Dastidar (supra), Shri Manoj Sharma submits that now no indulgence is required to be made in the matter as the promotion granted is only after taking note of all the circumstances that are available on record. 5. Having heard leaned counsel for parties, we find that in the case of Abhijeet Ghosh Dastidar (supra), in para 8 principle has been laid down by the Supreme Court, which reads as under :- “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 of promotion or getting other benefits. Hence, such non-communication would be arbitrary and as such violative of Article 14 of the Constitution. The same view has been reiterated in the above referred decision (Dev Dutt case SCC p.738, para 41) 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.” 6. 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.” 6. If after taking note of the aforesaid principle of law and finding that the employee was already granted promotion on 26.12.2002 and taking note of the fact that he has retired and promotion is only made retrospectively w.e.f. 8.3.2001, for the present, in this case we see no reason to interfere in the matter exercising our extraordinary jurisdiction in the petition filed under Article 227 of the Constitution of India, however all the questions of law raised are kept open to be considered if required in a given case. 7. Accordingly, finding no case made out for interference, the petition stands dismissed. Gautam Prasad for petitioners; Manoj Sharma for respondent.