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2022 DIGILAW 387 (MP)

INDRABHAN GAUTAM v. STATE OF MADHYA PRADESH

2022-03-08

PURUSHAINDRA KUMAR KAURAV

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ORDER : – The petitioner is aggrieved by the order dated 31-1-1996 (Annexure-P-9), whereby, the petitioner has been superseded and the private respondents have been promoted on the post of Deputy Director. The petitioner has also prayed for various other consequential reliefs. 2. The facts of the case are that the petitioner joined the services of the respondent-Madhya Pradesh Khadi and Gramodyog Board on 1-8-1978 on the post of District Inspector. Vide order dated 27-7-1979, the petitioner was promoted and was appointed as Manager for a period of two years on probation. The respondent No. 2 vide order dated 30-7-1995, published the seniority list of Managers as on 1-4-1995. The name of the petitioner was at Serial No. 15 and the names of respondents No. 6, 7 and 8 are at Serial Nos. 16, 17 and 18. The petitioner had a grievance against his placement in the seniority list and, therefore, he made a representation to the respondents for appropriate correction in the seniority list. 3. The respondent-Board is constituted in accordance with the provisions of Madhya Pradesh Khadi Tatha Gramodyog Adhiniyam, 1978 (hereinafter referred to as the ‘Act of 1978’ for short) and the Board has adopted the Service Rules known as Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966 (hereinafter referred to as the ‘Rules of 1966’ for short). It is not disputed at bar that the Madhya Pradesh Public Service (Promotion) Rules, 2002 are also applicable to the officers of the Board. The petitioner stated that in accordance with the Service Rules of the Board, there were 14 posts for the main office and 6 posts for regional offices and in all there were 20 posts of Deputy Director and those posts were 100% promotional from the post of Manager and the experience of 12 years was necessary and the petitioner was fulfilling all the eligibility criteria to be promoted on the post of Deputy Director. 4. The petitioner states that when promotion on the said posts were likely to take place, the respondent-Board vide Annexure-P/6 dated 12-10-1995, communicated an adverse confidential report of the year 1994-95 to the petitioner. The petitioner submitted his reply and prayed to expunge the adverse remark in the ACR. The respondent vide order dated 8-1-1996 rejected the representation submitted by the petitioner against the adverse remark made in his ACR. The petitioner submitted his reply and prayed to expunge the adverse remark in the ACR. The respondent vide order dated 8-1-1996 rejected the representation submitted by the petitioner against the adverse remark made in his ACR. Thereafter, vide order dated 31-1-1996, order of promotion on the post of Deputy Director to other eligible officers were issued where the name of the petitioner did not find place. 5. The respondents have filed their reply and it has been stated by respondent Nos. 1 to 3 that after inviting objections on the provisional seniority list, a fresh provisional seniority list was prepared and was published on 30-3-1993 reflecting the seniority as on 1-4-1992 where the name of respondent Nos. 4 and 5 were above the name of the petitioner. The name of respondent Nos. 6 to 8 were just below the name of the petitioner. The petitioner did not challenge his placement in the seniority list, however, the objections filed by the individual candidates were decided. 6. Learned counsel for the petitioner submits that respondent No. 4 to 8 are junior to the petitioner who have been promoted and therefore, non-promotion of the petitioner on the post of Deputy Director is violative of Article 15 and 16 of the Constitution. By way of amendment, the petitioner has also prayed for quashing the adverse entries in his ACR of the concerned year. The learned counsel appearing for the petitioner places reliance on a decision of the Supreme Court in the case of Dev Dutt vs. Union of India and others, (2008) 8 SCC 725 . It is alleged that in view of the law laid down by the Supreme Court in the said case, the action of the respondents suffers with arbitrariness in not considering the case of the petitioner for promotion. 7. This petition was earlier disposed of by this Court vide order dated 7-9-2006. In the said order, the submission of the learned counsel for the petitioner was recorded that the confidential report for the year 1992-93, 1993-94 and 1994-95 were communicated to the petitioner and the same were not the adverse entries, but it was advisory in nature. 7. This petition was earlier disposed of by this Court vide order dated 7-9-2006. In the said order, the submission of the learned counsel for the petitioner was recorded that the confidential report for the year 1992-93, 1993-94 and 1994-95 were communicated to the petitioner and the same were not the adverse entries, but it was advisory in nature. This Court while finding that there was nothing on record to show as to how the DPC considered the confidential reports of those years and under such circumstances, the employer was directed to hold a review DPC to consider the case of the petitioner afresh. The said order dated 7-9-2006 passed in the present case was challenged in Writ Appeal No. 1074/2006 by the respondent-employer before the Division Bench of this Court. The Division Bench of this Court in Writ Appeal No. 1074/2006, vide order dated 5-12-2013, has interfered with the order passed by this Court and has found that the learned Single Judge did not adhere to the contents of the Document Annx.R/9 (Annexure-P-6 to the writ petition) and under those circumstances, the finding recorded by this Court that the ACR pertaining to the year 1994-95 was advisory in nature was set aside and the parties were relegated to this Court for the examination of the issue afresh. 8. The Supreme Court, time and again, has laid emphasis on right to be considered for promotion to be a fundamental right. It has been held that there is no fundamental right to promotion but an employee always has right to be considered, when the occasion arises, in accordance with the relevant rules [See: Director, Lift Irrigation Corporation Limited vs. Rawat Kiran Mohanti, (1991) 2 SCC 295 ]. It is also settled law that if a person who satisfy the eligibility and the criteria for promotion, but still is not considered for promotion, then there will be clear violation of his/her fundamental right [See: Ajit Singh and others vs. State of Punjab and others, (1999) 7 SCC 209 ]. No officer has a vested right to a promotional post which is restricted to that of consideration according to law. 9. No officer has a vested right to a promotional post which is restricted to that of consideration according to law. 9. There is no dispute with regard to the fact that name of the petitioner finds place at Serial No. 15 in the seniority list, however, it has been stated that respondent No. 4 and 5 had always been shown as senior to the petitioner right from the year 1979. The petitioner did not earn good grading for the last 3 years before the date of DPC for the promotion on the post of Deputy Director and the adverse remark were duly communicated. Since the respondent Nos. 4 to 8 did not earn adverse remark and their grading was good, hence, they were considered for promotion. It has also been stated in the reply that not only of the year 1994-95, but even for the year 1992-93, 1993-34 also, the ACR of the petitioner was not good and the adverse remark in his ACR of those years was also communicated to him vide Annexure R/7 and R/8. The petitioner had given representations which were rejected. 10. This Court has perused the proceedings of the DPC dated 8-1-1996, produced by the employer. The DPC has considered the following criteria for considering the eligible candidates for promotion on the post of Deputy Director : – 11. The perusal of condition No. (5) clearly shows that ACR of the last five years was to be considered and the ACR of the preceding year immediately to the year of DPC should not be in any case be ‘Ga’ or ‘Gha’. If the ACR of the preceding year to the year of DPC is ‘Ga’ or ‘Gha’, such candidate is ineligible for promotion. The case of the petitioner has been considered in General Category at Serial No. 16 and on account of the adverse ACR for the year 1994-95, which was ‘Gha’, he was not found eligible for promotion. 12. If the ACR of the preceding year to the year of DPC is ‘Ga’ or ‘Gha’, such candidate is ineligible for promotion. The case of the petitioner has been considered in General Category at Serial No. 16 and on account of the adverse ACR for the year 1994-95, which was ‘Gha’, he was not found eligible for promotion. 12. The Hon’ble Supreme Court in the matter of Dev Dutt vs. Union of India and others after considering the law laid down in earlier decision of U. P. Jal Nigam vs. Prabhat Chandra Jain, (1996) 2 SCC 363 , has held in paragraph No. 36 that fairness and transparency in public administration requires that all entries (whether poor, fair, average, good or very good) in the annual confidential report of a public servant, whether in civil, judicial, police or any other State service (except the military), must be communicated to him within a reasonable period so that he can make a representation for its upgradation. 13. The perusal of the record of the DPC and the fact that the petitioner earned adverse entry in his ACR of the year 1994-95, which has been found to be duly communicated to him and his representation against the said entry was also rejected by the employer, shows that the said ACR was duly communicated to the petitioner. 14. The Hon’ble Supreme Court in the matter of Union of India and another vs. C. Ganayutham, (1997) 7 SCC 463 has held that to adjudge the validity of any administrative order or statutory discretion, normally the Wednesbury test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision maker could, on the material before him and within the framework of the law, have arrived at. The Court would consider whether relevant matters have not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bona fide. The Court would also consider whether the decision was absurd or perverse. The Court would not however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the Court substitute its decision to that of the administrator. This is the Wednesbury test. The Court would also consider whether the decision was absurd or perverse. The Court would not however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the Court substitute its decision to that of the administrator. This is the Wednesbury test. There is no doubt that under the power of judicial review the Constitutional Court can always interfere with the adverse remark made in the concerned ACR. However, the scope of interference is quite limited and the same has to be keeping in mind the principles laid down in the case of Union of India and another vs. C. Ganayutham (supra). 15. It is thus evident that the petitioner had adverse ACR for the year 1994-95, which was ‘Gha’, and hence he was not found eligible for promotion on the post of Deputy Director. The said adverse remark was duly communicated to him. The petitioner made a representation against the said ACR, which was rejected. This Court, therefore, does not find any infirmity in the impugned decision of the respondents. There is no substance in the instant petition, which is accordingly dismissed.