Bombay High Court
Surajprasad Shivprasad Awasthi vs State Of Maharashtra Through Its ... on 21 July, 2016
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Writ Petition No.1191 of 2009
Surajprasad Shivprasad Awasthi,
Aged about 74 years, Occ.- Retired as Forester,
R/o.-Kawrapeth, Umred,
Tahsil Umred, District Nagpur. .... Petitioner.
Versus
1] State of Maharashtra,
through its Secretary,
Revenue and Forest Department,
Mantralaya, Mumbai-32.
2] The Conservator of Forest,
Nagpur Circle, Civil Lines, Nagpur. .... Respondents.
Shri S.K. Pardhy, Advocate for petitioner.
Shri Prashant Gode, Advocate for resp. no.2.
Shri S.B. Bissa, AGP for resp. no.1.
Coram : B.P. Dharmadhikari &
Kum. Indira Jain, JJ.
st
Dated : 21
July, 2016.
ORAL JUDGMENT [Per B.P. Dharmadhikari, J.]
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The petitioner is retired Government servant. He has
superannuated in 1992 and being a senior citizen, we have
heard the matter finally out of turn.
2] Learned Advocate Shri Pardhy for the petitioner, after
explaining the facts in brief submitted that, the Maharashtra
Administrative Tribunal, Nagpur Bench, Nagpur (hereinafter
referred to as "the MAT") has allowed Original Application No.
1401 of 1992 and directed the respondents to consider the
case of the petitioner for promotion in the year 1981. This
consideration undertaken by the respondents is vitiated
because the uncommunicated adverse remarks have been
looked into. The learned Advocate for the petitioner has taken
us through the order dated 22-02-2002 by which the outcome of
that consideration has been communicated to the petitioner.
The petitioner, thereafter, approached the MAT in Original
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Application No.163 of 2002 and that Original Application has
been dismissed on 29-07-2008. Learned Advocate Shri Pardhy
for the petitioner urges that without recording any finding on
contention that the adverse remarks were not communicated
and therefore the same could not have been used, the judgment
has been delivered. He submits that unfortunately the petitioner
was involved twice in criminal prosecution and on both the
occasions he was acquitted honourably. Hence, the
involvement of the petitioner in the alleged offences by itself
could not have been used to deny him the promotion. The
learned Advocate for the petitioner has relied upon the judgment
of the Hon'ble Apex Court in the case of Sulekh Chand and
Salek Chand vs. Commissioner of Police and others, reported
at 1995(70) FLR 299. The learned Advocate for the petitioner
has invited our attention to Chapter-XVI of the Forest
Department Manual regarding the maintenance of the Annual
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Confidential Reports of Officers and Establishment, particularly,
Clause 16.03.01 therein. He submits that the said Clause does
not permit the use of uncommunicated adverse remarks for
denying the promotion.
3]
The learned Assistant Government Pleader, on the other
hand, has placed reliance upon the reply-affidavit to urge that
after this Court passed the interim orders & directed production
of confidential reports before it, the efforts were made to trace
out the same. The same could not be traced out but according
to him that does not mean that the adverse remarks were not
communicated. He has placed reliance upon the judgment
delivered by this Court on 29-10-2015 in Writ Petition No.5123
of 2014 (Dr. Reeta Harode vs. State of Maharashtra, through
its Secretary, Department of Higher and Technical Education,
Mantralaya, Mumbai-32 and others) to urge that, even the
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uncommunicated adverse remarks can be used. One of us
B.P. Dharmadhikari, J. is a party to that judgment.
4] The facts show that the petitioner joined the services as
'Forester' on 04-11-1962 and he reached the age of
superannuation on 30-06-1992. According to him, he was due
for promotion on 03-11-1979. However, as a criminal
prosecution was pending, he was placed under suspension on
02-09-1977. He was, thereafter, reinstated on 18-01-1980. He
was acquitted in the said criminal matter on 08-08-1983.
5] Before this acquittal on 12-01-1982, he was again placed
under suspension pending enquiry and that suspension lasted
upto 02-06-1988. He was acquitted by the competent Criminal
Court in second prosecution on 12-04-1990. Because of this
acquittal again he was honourably reinstated back in service by
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dropping all the departmental charges.
6] Original Application No.1401 of 1992 was filed by him
seeking relief of promotion to the post of Range Forest Officer
with effect from 03-11-1979 i.e. the date on which his juniors
were promoted. The MAT in its judgment dated 12-12-2001
found that the Departmental Promotion Committee [D.P.C.] met
in 1979, in 1981 and thereafter in 1985 to finalize the promotions
and respondent no.1/ State Government produced the records
before the MAT it demonstrated that the eligibility of the
petitioner was examined for the said promotion in the year 1979
and 1985. The petitioner was not found fit. The learned
Counsel for the petitioner had, however, fairly conceded that in
1981 the eligibility of the petitioner was not looked into. In view
of this submission, the MAT called for the Confidential
Records/Reports of the petitioner, perused it and then found it
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proper to ask the D.P.C. to evaluate the same. In view of this,
the MAT did not express any opinion on the said Confidential
Reports. In operative part of its judgment the MAT has,
therefore, directed only to consider the case of the petitioner for
promotion in 1981 when the meeting of the D.P.C. was
conducted. This judgment, therefore, shows that the petitioner
cannot claim promotion either from 03-11-1979 or then
complain of any super session in 1985. The only question to be
looked into is whether his eligibility for promotion in 1981 has
been rightly looked into.
7] The impugned communication issued to the petitioner
dated 22-02-2002 mentions that for the said purpose his
Confidential Reports for the period of five years with effect
from 1976-1977 to 1980-1981 were scrutinized. He was under
suspension for 02 years, 04 months and 16 days during this
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period. His average grading was below required standard and
hence he was not found fit for the promotion in 1981. It is this
communication which formed the subject matter of challenge in
later Original Application No.163 of 2002 before the MAT.
8]
In its judgment dated 29-07-2008 delivered in this later
Original Application after reproducing the necessary facts and
rival contentions, the MAT has noted that the entitlement of the
petitioner for promotion to the post of Range Forest Officer in
1981 was looked into by the D.P.C. and it was not in a position
to sit in Appeal over that consideration. In the light of this
finding only, it has rejected the Original Application.
9] This judgment cannot be read independent of the earlier
judgment dated 12-12-2001. In earlier Original Application No.
1401 of 1992, the grievance of super session and therefore
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prayer for promotion as Range Forest Officer itself was under
consideration by the MAT. The MAT did not find any injustice to
the petitioner either in 1979 when D.P.C. met first or then in
1986 when it met last. The learned Assistant Government
Pleader for the State rightly pointed out that though the case of
the petitioner was not looked into by the D.P.C. in 1981, the MAT,
therefore, itself called for the confidential reports of the
petitioner, perused it but then did not comment as it found it
unnecessary. The said judgment dated 12-12-2001, therefore,
shows that the MAT permitted the respondent no.1/State to
look into the confidential reports produced before the MAT by
the respondent no.2 and on that basis also permitted the State
to decide his fitness for the promotion. Accordingly, the
contention that, the uncommunicated adverse remarks have
been looked into is not open thereafter. The said aspect stands
concluded by earlier judgment dated 12-12-2001.
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10] In the judgment of the Hon'ble Apex Court in case of
Sulekh Chand and Salek Chand (supra), the D.P.C. has looked
into only prosecution under Section 5(2) of the Prevention of
Corruption Act and the Departmental Enquiry proposed against
the employee for same misconduct. It did not look into any
other material. The employee was acquitted in criminal
prosecution and hence no merit was left in Departmental
Enquiry. Thus, this judgment cannot be used as a precedent in
the present matter. Learned Advocate Shri Pardhy for the
petitioner also relied upon several other judgments to urge that
the uncommunicated adverse remarks cannot be looked into.
However, the law has been examined by the Division Bench of
this Court on 29-10-2015 in Writ Petition No.5123 of 2014 where
the judgment of the Larger Bench of the Hon'ble Apex Court in
case of Baikuntha Nath Das and another vs. Chief District
Medical Officer, Baripada and another, reported at (1992) 2
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SCC 299 has been looked into. The Division Bench has found
that if the adverse remarks existed, the same could have been
looked into though there was no communication.
11] In the present matter, it is not necessary for us to record
any finding about the effect of use of allegedly
uncommunicated adverse remarks. We have found that the
earlier judgment dated 12-12-2001 expressly permitted the
respondent no.1/State to use the said adverse remarks.
12] In any case the finding that the petitioner did not meet
bench mark for promotion on 03-11-1979 and therefore in 1986
has attained finality. Thus, the confidential reports for the
period of five years prior to 03-11-1979 were looked into while
declaring the petitioner unfit in 1979 by the D.P.C. The later
consideration is in 1981 i.e. within two years of the said
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consideration. During this period for some time the petitioner
was under suspension pending enquiry. As such, there could
not have been any other confidential report available for the
independent evaluation.
13]
The facts show that the petitioner was found unfit in
1979, he also declared unfit in 1986. On the basis of the
confidential reports available on record he was also found unfit
in 1981. The petitioner has not alleged any mala fides against
his employer or any D.P.C. member. In this situation, the MAT is
justified in observing that it cannot sit in appeal over the
findings of said D.P.C. There is no jurisdictional error or
perversity.
14] We, therefore, find no case warranting interference in
extraordinary jurisdiction. Petition is dismissed. Rule stands
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discharged. No costs.
JUDGE JUDGE
Deshmukh
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C E R T I F I C A T E
"I certify that this Judgment uploaded is a true and
correct copy of original signed Judgment."
Uploaded by : Uploaded on :
(Deshmukh) 25/07/2016
P.A. to the Hon'ble Judge.
