Sanjay Khedkar vs The State of M.P. and Others

K.K. Trivedi, J.—The petitioner, an Assistant Commissioner working in the Scheduled Caste Development Department of State of Madhya Pradesh, has approached this Court ventilating his grievance against the order by which juniors to him, the respondents No. 4, 5 and 6, have been promoted on the post of Deputy Commissioner ignoring the claim of the petitioner. It is alleged that the petitioner was initially appointed on the post of District Organizer on account of his selection by the Public Service Commission. In due course on account of meritorious services, the petitioner was promoted on the post of Assistant Commissioner/Deputy Director of the Department with retrospective effect from 13.12.2004, by an order dated 23.05.2006. Since the petitioner was not timely promoted on account of error on the part of the respondents, while issuing the order, the seniority of the petitioner on promotion was also fixed over and above the persons mentioned in the said order. The fact remains that there was a departmental enquiry pending against the petitioner when the D.P.C. was convened on 15.10.2004. The recommendations in respect of the petitioner were kept in the sealed cover by the D.P.C. The orders of penalty were issued against the petitioner, which orders were set aside by the State Government in appeals of the petitioner, as a consequence, the promotion of the petitioner was ordered. According to the petitioner when his seniority was fixed, he was to be considered for promotion on the post of Deputy Commissioner. However, when the D.P.C. was convened in the year 2008, the case of the petitioner was not properly considered and again juniors to him were promoted vide order dated 03.10.2008. Since he was illegally superseded, without appreciating the ACRs of the petitioner in appropriate manner, he was required to move an application for supply of copies of ACRs so that he may agitate the matter in appropriate manner. However, the ACRs were not made available to the petitioner and that being so, it was not possible for him to verify as to how the claim of the petitioner was considered. It was categorically contended by the petitioner that the ACRs of the petitioner were tampered inasmuch as the downgrading reflected in the ACRs was noted down in the master chart, which was placed before the D.P.C. for consideration and this being so, the case of the petitioner was not rightly considered. In view of these allegations, the petitioner claimed the relief of promotion on the post of Deputy Commissioner/Project Administrator with all consequential benefits.

Refuting the allegations made by the petitioner, a return has been filed by the respondents No. 1 and 2. They have contended that the case of the petitioner was considered in appropriate manner. However, the gradings of the ACRs of the petitioner as reflected, were such that even after taking into consideration the said gradings, it was found that the petitioner has not touched the benchmarks prescribed by the D.P.C. and, therefore, he was not found fit for promotion. It is contended that for the general category, 15 benchmarks were fixed and looking to the gradings of the ACRs of the petitioner with effect from the year 2002 to 2006, he has not achieved the benchmarks. That being so, the entire claim made by the petitioner was misconceived. It is, thus, contended that the petition is liable to be dismissed.

Though a specific allegation was made by the petitioner in his petition with respect to improper assessment of his ACRs in paragraph 5.9 of the writ petition but the reply to the said allegation was not given in appropriate manner by the respondents as no parawise reply of the petition was filed by the respondents, therefore, this Court directed production of the D.P.C. record as also the ACR folders of the petitioner to ascertain the fact whether there was any downgrading made in the ACRs of the petitioner or not. The said record is placed before this Court for perusal.

Heard learned Counsel for the parties at length and perused the record.

It is not in dispute that the D.P.C. meeting was held on 02.09.2008 and cases were considered for promotion in accordance to the criteria of merit-cum-seniority prescribed under Rule 7 of the Madhya Pradesh Public Service (Promotion) Rules, 2002 (herein after referred to as ''2002 Rules''). It is also not in dispute that promotion is prescribed under the Madhya Pradesh Scheduled Caste Scheduled Tribe and Backward Classes Welfare Department (Gazetted) Services Recruitment Rules, 1969 (herein after referred to as ''1969 Rules''). It is also not in dispute that some clarificatory instructions were issued with respect to the 2002 Rules by issuing orders in that respect. However, for the purposes of appreciation of the controversy involved in the present petition, it would be necessary to look into the provisions of 2002 Rules.

Rule 7 of 2002 Rules prescribes consideration for promotion on the basis of merit-cum-seniority. The first Sub-Rule is with respect to the zone of consideration. The second Sub-Rule is with respect to the extension of the zone of consideration and the third Sub-Rule is with respect to the preparation of a list in accordance to the available vacancies and preparation of a reserved list to meet out any exigency. The explanation appended to these provisions makes it clear that for the computation of eligibility for promotion, period of qualifying service as on 1st January of the relevant year in which the D.P.C. meeting is convened shall be taken into consideration as a calendar year in which the public servant has joined. Meaning thereby, the petitioner had completed the requisite years of service for consideration as he was given the promotion with retrospective effect on the feeder post. As far as the petitioner is concerned, his ACRs for the years 2002 to 2006 were to be taken into consideration. It was specifically prescribed by the State Government that in case there is a dispute with respect to the ACR gradings made by the Initiating, Reporting, Reviewing and Approving Authority, the same shall be resolved by the D.P.C. itself and while doing so, the D.P.C. may increase or decrease only one mark in the gradings of the ACRs. The ACR of the petitioner for the year 2001 was ''very good'' as was duly approved by all the authorities writing the ACRs of the petitioner. However, the ACR of the petitioner for the year 2002 while was initiated, he was graded as ''average'', which too was accepted by all the authorities and this being so, the same was rightly treated to be average in the master chart. The ACR of the petitioner for the year 2003 was again graded as

''excellent'' by the Initiating Authority but the same was downgraded by the final Approving Authority and it was treated to be ''average''. The only reason assigned was that for the aforesaid period of ACR, the working of the petitioner was average whereas on the basis of the assessment of work produced by the petitioner, the same was graded to be ''excellent'' by the Initiating Authority. That being so, there was a dispute whether the ACR of the petitioner could be treated to be ''average'' or was it to be treated as ''good''. For the good ACR marking is already prescribed under the instructions of the State Government and, therefore, that was required to be done by the D.P.C. The ACR of the particular year was required to be regarded and appropriate marks were required to be assigned. From the master chart produced along with the D.P.C. record, it appears that there was nothing done in this respect by the D.P.C. and the ACR of the petitioner was treated to be ''average'' only, which according to the Rules and instructions was not proper.

Again for the ACR of the year 2004 the petitioner was graded as ''very good'' which grading was again changed by the Reviewing Authority as ''average''. No reasons were assigned as to why this change was done. The self assessment produced by the petitioner was evaluated and grading was done by the Reporting Authority. Therefore, again there was a difference of opinion in the gradings of the ACR of the petitioner for this particular year and again it was required to be regraded by the competent authority. Nothing was done, only the grading of the final authority was accepted and the petitioner was graded as ''average''. Again the D.P.C. failed to discharge its function in appropriate manner. Undisputedly, the petitioner was having very good remarks in the ACR of the year 2005 and 2006, which was finally approved by the authorities and, therefore, these two gradings were not required to be regraded by the D.P.C.

Had it been done in appropriate manner, the rightful consideration of the ACRs of the petitioner would have been done by the D.P.C., it would have been assessed in a better way to adjudge whether the petitioner was fit for grant of promotion or not or whether he could achieve the benchmarks fixed for such promotion. The change in the benchmarks is required to be seen. Only if a promotion from Class-I to higher pay scale of Class-I is to be made, the benchmarks shall be very good but otherwise the benchmarks varies. Sub-rule (9) of Rule 7 of the 2002 Rules prescribes that the D.P.C. shall make a relevant comparative assessment of the merits of the public servants, who are within the zone of consideration and shall make an overall grading of the public servant''s merit on the basis of their service record and will place them in the categories such as outstanding, very good, good, average and poor. Only in cases where the benchmarks is fixed in such a manner, the select list is to be prepared. In other cases merit order is to be drawn looking to the vacancies available and then promotions are required to be ordered. Since this particular aspect was lost sight by the respondents and since they have not considered the merits of the petitioner in appropriate manner, it is a case where this Court would require to exercise power of judicial review and to command the respondents to do appropriate exercise for proper consideration of the claim of promotion of the petitioner. True it is that only the right to be considered for promotion is fundamental right available to an employee or officer but it is also true that if consideration is not done in the rightful manner, this Court would have powers to judicially review such action of the respondents. From the records and the proceedings done by the respondents as described herein above, it is clear that claim of the petitioner was not properly considered in the matter of grant of promotion by the D.P.C. held on 02.09.2008.

Yet another reason to hold that consideration of petitioner for promotion was not rightly done, is that his ACR of the year 2001 was excellent. There was a great fall in his working as was reflected from the ACR grading of 2002 where he was graded as average. The fact that petitioner was in the zone of consideration was well within the knowledge of respondent department. Any ACR which would have come in his way of promotion should have been treated as adverse and should have been communicated to him so that he could have taken any required step for correction in his gradings. Without communicating such ACR the same were not to be taken in the consideration as has been held by the Apex Court in the case of U.P. Jal Nigam and others Vs. Prabhat Chandra Jain and others, and in the case of Dev Dutt Vs. Union of India (UOI) and Others, . There is no averment made in the return nor the D.P.C. record reveals that the aforesaid ACRs were communicated to the petitioner. Therefore, it has to be held that there was a folly on the part of D.P.C. while not regarding the ACRs of the petitioner, which were downgraded by final Accepting Authority without recording any reasons and secondly taking into consideration such ACRs without communicating the same to the petitioner. Therefore, it would be appropriate to command the respondents to hold a review D.P.C., consider the case of the petitioner keeping in view the observation made herein above after regarding the ACRs of the petitioner or to ignore the same as they were not communicated to the petitioner and considering the previous years ACRs, to issue necessary orders in case the petitioner is found fit for grant of such promotion.

Consequently the writ petition is allowed to the extent that the respondents would convene a review D.P.C., will review the claim of petitioner after regarding his ACRs for the year 2002, 2003 and 2004 or to ignore such ACRs as the same were not communicated to the petitioner and to consider previous years ACRs and to take a decision whether the petitioner is found fit for grant of such promotion or not. In case the petitioner is found fit for grant of such promotion, necessary orders in this respect be issued giving benefit of promotion to the petitioner from the date it was made available to his juniors, respondents No. 4, 5 and 6, with all consequential benefits of such promotion. Let the aforesaid exercise be completed within a period of four months from the date of receipt of copy of this order. The writ petition is allowed to the extent indicated herein above. There shall be no order as to costs.