Pradeep Kumar Sharma vs State Of Madhya Pradesh And Others

The petitioner has filed the present petition seeking quashment of the orders dated 28.05.2016 and 22.08.2016 and also seeking direction for

consideration of his case for promotion to the post of ASI with effect from 2012.

The petitioner was appointed as Head Constable No.239. In the year 2015, respondents issued the order of promotion of ASI and when the petitioner

did not find his name, then he enquired and came to know that because of some adverse confidential report of the year 2012, his name was not

considered for promotion to the post of ASI by the Departmental Promotional Committee. Immediately, the petitioner submitted a representation in the

form of appeal seeking expunction of the adverse ACR. By order dated 28.05.2016, the respondent has rejected the appeal of the petitioner by non-

speaking order. Hence, the present petition before this Court.

In the present petition, the petitioner took a specific plea that adverse ACR were not communicated to him and the respondent has rejected the appeal

by non-speaking order. Because of that uncommunicated adverse ACR he has not been considered for promotion to the post of ASI.

The respondent as usual did not file parawise reply to the writ petition. According to the respondent, the petitioner was found indulging in gambling

activities, therefore, adverse entries were made in the year 2012 and the finding of fact has been affirmed by order dated 28.05.2016 and 22.08.2016.

In support of the return reliance has been placed on the judgment passed by this Court in the case of R.K.Parashar Vs. M.P.Power Management

Company reported in 2013(3) MPLJ 405 wherein it has been held that the scope of interference by the High Court in the case of adverse ACR is

very limited.

Learned counsel for the petitioner submits that the petitioner came with a specific plea that adverse remarks were never communicated to him.

Paragraphs 5.4 and 6.1 are reproduced herebelow:-

“5.4 That, the petitioner says and submits that the petitioner came to know that in the year 2015 that the Annual Confidential Report of 2012 the

then R.I. recorded the adverse entry against the petitioner hence the name of the petitioner was not considered for the promotion on the post of A.S.I.

6.1 That, the petitioner says and submits that the adverse remark has not been communicated to the petitioner. The respondents made a adverse entry

in the annual confidential report of the petitioner in the year 2015 and the petitioner came to know about the adverse entry in the A.C.R.in the year

2015.â€​

There is no denial of this fact by the respondents. The petitioner submitted representation/appeal in the year 2015 only when he was not considered

for promotion and he came to know that there are adverse ACR against him. He filed a detailed appeal with specific grounds seeking expunction of

the adverse ACR but by order dated 28.05.2016 the respondent without appreciating the grounds raised in the appeal has dismissed the appeal and

closed the case. Respondents ought to have decided the appeal by a reasoned and speaking order.

Learned counsel for the petitioner has placed reliance on the judgment of this Court in the case of Roop Singh Bhil Vs. State of M.P. reported in ILR

2015 MP 1311 in which this Court in similar facts and circumstances has expunged the adverse ACR and set aside the order rejecting the appeal and

further directed to consider the case for promotion by way of review DPC. This Court has placed reliance on the circular issued by the State

Government dated 29.11.1984 according to which adverse ACRs are required to be communicated within a period of three months. If the ACRs are

communicated after the period of three months, the same will be treated as nonest. Paragraphs 3,7,8 and 9 are reproduced as under:-

Learned counsel for the petitioner submits that as per the circular issued by the State Government dated 29/11/1984, the adverse ACRs are

required to be communicated within a period of three months. If the ACRs are communicated after the period of three months, the same will be

treated as nonest. He submits that in the present case, ACR of the year 2009 was communicated to the petitioner in the year 2010 and the ACR of

the year 2010 was communicated to him in the year 2011 i.e. after expiry of period of three months. He further submit s that the order dated 2/3/2012

by which the respondents have rejected the representation submit ted by the petitioner against his adverse ACRs is also non-speaking order and

deserves to be set aside. He, therefore, prays that these ACRs may be expunged and the respondents may be directed to consider his case for

promotion along with his juniors. For the said purpose, learned counsel for the pet it ioner has relied upon the two judgments passed by this Court in the

case of Rajesh Kumar Saxena Vs. State of M.P. & another, reported in 2012(4) MPHT 19 and Ramesh Kumar Rusia Vs. State of M.P.and others,

reported in 2005(3) MPLJ 313.

This Court in the case of Rajesh Kumar Saxena (supra) in para-6 has held as under :

The object of writing of Annual Confidential Report is well known in the service jurisprudence. The Confidential reports of an employee is to be

written only for the purposes of adjudging his service abilities. If an employee of department,who was having the excellent service record or

satisfactory service record, started showing downfall in performance or discharge of his duties, the entries are required to be made in the Annual

Confidential Report. Such entries whether adverse or not, are required to be shown to the said employee to apprise him or her with respect to

performance of duties so that he or she may improve the working in future. The object of recording of Annual Confidential Report would be frustrated

in case it is not timely communicated. This being the reason, the State Government has issued the circular time and again directing as to how the

adverse part of the Annual Confidential Reports are to be communicated, within which period the said communication is to be made and within which

period the representation, if any made against such entry, is required to be decided. This has been reiterated in the circular dated 9th March, 1992,

wherein all the circulars previously issued right from 1979 upto 1990 have been referred. The State Government has very categorically provided a

time mechanism for writing of confidential report. The initiation of Annual Confidential Report is to be done by 15th April. The Reviewing Officer is

required  to give his comments by 1st of May. The approving authority is required to record his comments by 15th May. If any adverse entry is

recorded, the same is to be communicated within 30 days from the aforesaid final date mentioned in the circular. If any representation is made against

the said adverse entry, the same is to be decided within a month. If any inquiry is required to be conducted with respect to the representation made

against the adverse entry, that has to be completed within a period of three months. This indicates that intent ion of the State Government is to apprise

the employee concerned against whom the adverse entry is recorded, with respect to such adverse entry and to complete the process of finalising the

representation etc. made against such entry within the stipulated period so that nobody may face any prejudice or inconvenience in case of promotion.

That being so, it was necessary on the part of the respondents to communicate the adverse entry to the petitioner timely.â€​

Similarly, this Court in the case of Ramesh Kumar Rusia (supra) has held that the representation made by the petitioner against the adverse

remarks in Annual Confidential Report, then the authority was duty bound to decide the representation by passing a speaking order. In the present

case, as the representation is rejected by the respondents by a non-speaking order, therefore, the order rejecting the representation deserves to be set

aside.

In view of forgoing discussions and keeping in view the facts as have come on record, this writ petition deserves to be and is hereby allowed. The

order dated 2/3/2012 rejecting the representation submit ted by the petitioner against the adverse remarks in Annual Confidential Reports is hereby

quashed. The respondents are commanded to expunge the adverse entries recorded in the ACRs of the petitioner for the year 2009 and 2010

(Annexure-P/2 and P/3). The respondents are directed to convene the review DPC and to consider the case of the petitioner for promotion to the post

of Chief Engineer along with his juniors and if the petitioner found fit, then the respondents are directed to promote him from the date when his juniors

were promoted along with all consequential benefits. The aforesaid exercise be completed within a period of four months from the date of receipt of

certified copy of this order.â€​

In the present case, also the petitioner was not communicated adverse ACR in 2013, but when he came to know about the adverse ACR he submitted

the appeal. Even if it is treated as communicated there is four years delay in communication of the adverse ACR. The petitioner's name was not

considered for promotion because of the adverse ACR of 2012. It is well settled law that adverse ACR cannot be taken into consideration if not

communicated. The Apex Court in the case of Dev Dutt Vs. Union of India and others reported in (2008) 8 SCC 725 has held as under:-

In our opinion, every entry in the A.C.R. 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 vs. Union of India (supra) that arbitrariness violates Article 14 of the Constitution.

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 heart-burning, and may shatter the

morale of many good officers who are superseded due to this arbitrariness, while officers of inferior merit may be promoted.â€​

Even this fact has not been denied by the respondent in their return.

In view of the judgment passed in the case of Roop Singh Bhil (Supra) this petition deserves to be allowed. Adverse ACR of 2012 is liable to be

treated as expunged. The order dated 28.05.2016 is set aside. The respondents are directed to consider the case of the petitioner for promotion to the

post of ASI by way of review Departmental Promotional Committee and grant him all consequential benefits as per law.

C.C.as per rules.