Baijnath Rajput vs State of M.P. and others

A.K. Shrivastava, J.

This petition was originally filed before the State Administrative Tribunal at Jabalpur on 25-4-1990. However, on account of abolition of the Tribunal, this petition has been received by this Court for its adjudication.

By this petition the petitioner has challenged the validity of Annexure A/1 dated 30-3-1990 promoting his juniors on the post of Principal, Higher Secondary Technical School.

2A. There were adverse ACRs against the petitioner for the year 1985-86 and 1987-88. These adverse ACRs were communicated to him on 25-10-1986 and 16-2-1989 respectively. The petitioner submitted representation for the expunction of his adverse ACRs. In between the DPC was convened on 2-9-1989 and the employees who were junior to the petitioner were promoted to the post of Principal, Higher Secondary Technical School. The representation of the petitioner was accepted and on 27-8-1990 and his adverse ACRs were expunged vide Annexure R/l. The contention of learned counsel for the petitioner is that since adverse ACRs have been expunged, the case of petitioner ought to have been considered by respondents by constituting a review DPC to consider his case for promotion with effect from 2-9-1989.

Combating the aforesaid submission of learned counsel for the petitioner, it has been submitted by Shri Ashok Agrawal, learned Govt. Advocate that nobody restrained petitioner in filing petition before the Tribunal (since at the relevant point of time the Tribunal was functioning) restraining the respondent not to convene any DPC as his representation against his adverse ACRs is pending and therefore now petitioner cannot be permitted to say that on account of expunction of his adverse ACRs vide Annexure R/l dated 27-8-1990, a review DPC be convened to consider his case for promotion to the post of Principal with effect from 2-9-1989. The contention of learned Govt. Advocate is that definitely the case of petitioner can be considered after 1989. On the basis of these premised submissions, it has been contended by learned Govt. Advocate that this petition sans substance and the same may be dismissed.

After having heard learned counsel for the parties, I am of the view that this petition deserves to be allowed.

This fact is no more in dispute that the DPC was convened on 2-9-1989 when the case of petitioner on account of his adverse ACRs was not considered and the employees who were junior to the petitioner, their candidature was considered by the DPC and they were promoted vide Annexure A/1 dated 30-3-1990. This fact is also no more in dispute that these adverse ACRs were communicated to the petitioner on 25-10-1986 and 16-10-1989 respectively. It is also no more in dispute that against his adverse ACR the petitioner submitted representation to the competent authority and the authority, after considering his representation vide order dated 27-8-1990 Annexure R/l expunged them. If that is the position, I am of the view that the petitioner has made out a case for his consideration for promotion by convening a review DPC to consider his case with effect from 2-9-1989. I am not impressed by the submission of learned Government Advocate that the petitioner ought to have filed petition before the Tribunal asking for the relief that DPC should not be convened. Since, the petitioner by adopting due procedure as prescribed under the law has submitted the representation to the competent authority for expunging his ACRs, he cannot be blamed. As the competent authority expunged the adverse ACRs of the petitioner vide Annexure R/l dated 27-8-1990, this Court is of the view that petitioner has made out a case for his consideration for promotion from the date when his juniors were promoted (Annexure P/l).

If the adverse ACRs are expunged, it would mean that they were not in existence. The view of this Court is that an employee is entitled for the benefit after the expunction of his adverse ACRs, otherwise there would be no use for expunging his adverse ACRs. The legal effect of setting aside of adverse remarks would be that the remarks must be treated as non-existent in the eye of law. In this regard it would be fruitful to rely the decision of the Apex Court in the case of R.K. Singh v. State of UP in which it has held that after expunging the adverse remarks, an employee is entitled to selection grade with effect from the date on which he was eligible for grant of selection grade.

At this juncture, learned Government Advocate by placing heavy reliance on the decision of the Apex Court in the case of State of Madhya Pradesh v. Shri Srikant Chaphekar, 1992 (5) SLR 635 has contended that petitioner cannot ask for consideration of promotion with retrospective effect when the adverse ACRs were expunged on 27-8-1990. Considered the argument. According to me the case of Shri Srikant Chaphekar (supra) is distinguishable for the simple reason that in the said case there were two adverse ACRs against the employee and he was completely exonerated by one ACR, however, the second ACR was partially accepted. The Apex Court came to the conclusion that it was not the wisdom of the Tribunal to enter into the merit and de-merit of the unexpended ACR and to direct to review DPC. In the present case, both the adverse ACRs of the petitioner were expunged in its entirety and therefore the view of this Court is that the decision of Shri Srikant Chaphekar (supra) is not applicable in the present factual scenario.

For the reasons stated hereinabove, I am of the view that the petitioner has made out a case for his consideration for promotion to the post of Principal, Higher Secondary Technical School with effect from 2-9-1989, the date when his juniors were promoted vide Annexure P/l. The respondents are directed to convene review DPC for considering the case of petitioner for promotion on its own merit. Let this exercise be completed within a period of six months from today. The petition is hereby allowed. No order as to costs.