Raj Kumar Gupta vs State Of Chhattisgarh

The present petition has been preferred by the petitioner under Article 226 of the Constitution of India against the order dated 17.04.2013 (Annexure-P/1) passed by the respondent No.2, whereby the respondent No.3 has been promoted to the post of Account Officer from the post of Assistant Account Officer.

It is the case of the petitioner that initially the petitioner was appointed as Junior Auditor in the Madhya Pradesh State Agriculture Marketing Board at Bhopal vide order dated 22.10.1985 vide Annexure-P/2 and vide order dated 01.05.1989, his services were confirmed on the said post. Subsequently, vide order dated 01.02.1993, the petitioner was promoted to the post of Senior Auditor and thereafter vide order dated 29.11.2005, he was promoted to the post of Assistant Account Officer vide Annexure-P/ 3. Against the said promotion of the petitioner, the respondent No.3 preferred a writ petition bearing WPS No.5782/2007 before this Court. During pendency of the said writ petition, the respondent No.3 was promoted to the post of Assistant Account Officer by the respondent No.2.

In the gradation list of the Assistant Account Officers, which was issued for the year 2012-13 as on 01.04.2012, the petitioner was at Sr. No.1, whereas the respondent No.3 was at Sr. No.2. As per the setup of the respondent No.2, the promotional post of the Assistant Account Officer is the Account Officer and the total number of posts of Account Officer as per Schedule-I of the Chhattisgarh State Marketing Board Service Viniyam, 1998 was only one in number and all of sudden, the respondent No.2 promoted the respondent No.3 on the post of Account Officer vide order (Annexure-P/1) without considering the seniority of the petitioner. Hence, this petition.

The reliefs sought for by the petitioner are as under:-

“i. That this Hon’ble Court may kindly be pleased to quash the impugned order dated 17/4/2013 bearing No.B-1/2-1/Misc./253/13-14/390 (Annexure-P/1) passed by the respondent No.2.

ii. That this Hon’ble Court may kindly be pleased to direct the respondent No.2 to consider the case of the petitioner for grant of promotion to the post of Accounts Officer from the date of its vacancy i.e. w.e.f, 1st January, 2013 with all consequential benefits.

iii. Cost of the petition may also be granted to the petitioner.

iv. Any other relief, which this Hon’ble Court deems fit and proper, may also kindly be granted to the petitioner, in the interest of justice.”

Learned counsel for the petitioner submits that the impugned order passed by the respondent authorities is arbitrary, illegal and contrary to the law applicable as well as facts and circumstances of the case. The order impugned is also contrary to the Promotion Rules, 1998 as well as Schedule 7 of the Viniyam, 1998. The petitioner has worked only for 4 and half years on the post of Assistant Account Offficer, as such he was not eligible to be promoted to the post of Account Officer as per Schedule 7 of the Viniyam, 1998. He further submits that the respondent No.2 has failed to see that the criteria for promotion on the post of Account Officer is seniority-cum-merit and there is no adverse ACR against the petitioner. In the cadre of Assistant Account Officer in the State of Chhattisgarh, the petitioner was the most senior officer, but he has not been considered for promotion on the aforesaid post, which violates the fundamental rights of the petitioner as enshrined under Articles 14 & 16 of the Constitution of India. He next submits that the petitioner was the most senior person in the cadre and the criteria for promotion to the post of Account Officer is seniority-cum-merit, but the said principle has not been followed, as such there is no denial of the fact that the petitioner is senior to the respondent No.3. He next submits that the grading of confidential report was never communicated to the petitioner and as per guidelines of Supreme Court, it is mandatory to communicate the confidential reports to an employee, however, the respondents admitted this fact that the confidential report was not communicated to the petitioner and other employees of the Department as well. Learned counsel has placed his reliance on the judgment rendered by the Supreme Court in the matter of Dev Dutt vs Union of India and others (2008) 8 SCC 725.

Learned counsel for the respondent No.1 formally opposes the prayer made by the petitioner.

Learned counsel for the respondent Nos.2 & 3 jointly submit that the criteria for promotion from the post of Assistant Account Officer to that of Account Officer is seniority-cum-merit. For promotion on the post of Account Officer, the DPC was constituted, which was convened on 01.04.2013. The petitioner as well as the respondent No.3 were well within the zone of consideration. The DPC framed a minimum benchmark for promotion to the said post and one of the criteria was the overall evaluation of 5 years of confidential report to be of ‘good’ category. They further submit that on the evaluation of the last 5 years of the ACRs, the petitioner did not achieve the minimum benchmark, therefore, he was not found fit for promotion on the aforesaid post, whereas the respondent No.3 achieved the minimum benchmark and being 2nd in the seniority list, he was promoted to the post of Account Officer. Therefore, the petition filed by the petitioner may kindly be dismissed.

Heard learned counsel for the parties and perused the material available on record.

The Hon’ble Supreme Court in the matter of Dev Dutt (supra) held in paras 41, 42 & 43 as under:-

“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.

In view of the above, we are of the opinion that both the learned Single Judge as well as the learned Division Bench erred in law. Hence, we set aside the judgment of the Learned Single Judge as well as the impugned judgment of the learned Division Bench.

We are informed that the appellant has already retired from service. However, if his representation for upgradation of the `good' entry is allowed, he may benefit in his pension and get some arrears. Hence we direct that the 'good' entry of 1993-94 be communicated to the appellant forthwith and he should be permitted to make a representation against the same praying for its upgradation. If the upgradation is allowed, the appellant should be considered forthwith for promotion as Superintending Engineer retrospectively and if he is promoted he will get the benefit of higher pension and the balance of arrears of pay along with 8% per annum interest.”

Applying the aforesaid principle in the present case as well, it is manifest that in the case in hand, the ACRs of the concerned period were never communicated to the petitioner, whereas as of now the petitioner and the respondent No.3 both have already retired from their service, therefore, keeping in view the guidelines of the Supreme Court in Dev Dutt (supra), it is directed that all entries of concerned period be communicated to the petitioner within a period of 2 months from the date of receipt of copy of this order. On the ACR being communicated to the petitioner, he may make a representation if he so desires against the said entrees within next 2 months and thereafter the said representation shall be considered and decided by the respondent authorities within a period of 2 months from the date of filing of representation. If his entry is upgraded, the petitioner shall be considered for promotion on the post of Account Officer retrospectively by the DPC within 3 months thereafter and if the petitioner gets selected for promotion on the aforesaid post retrospectively, he should be given higher pension and arrears of pay along with interest @ 6% per annum till the date of actual payment.

With the aforesaid observation, the writ petition stands disposed of.