Chattisgarh High Court

Raj Kumar Gupta vs State Of Chhattisgarh And Ors on 12 January, 2023

                                      1

                                                                      NAFR

              HIGH COURT OF CHHATTISGARH, BILASPUR

                           WPS No.1326 of 2013

                      Order reserved on : 07.11.2022

                      Order delivered on : 12.01.2023

     • Raj Kumar Gupta, S/o Late Shri C. L. Gupta Aged About 56 Years
       Asst Accounts Officer, Posted At C.G. State Agricultural Marketing
       Board, Bilaspur, R/o Behind Lic Office, Talapara, Ps Civil Lines,
       Distt Bilaspur, Cg, Chhattisgarh

                                                              ---- Petitioner

                                  Versus

     1. State Of Chhattisgarh Through Secretary, Deptt Of Agriculture,
        Mahanadi Mantralaya, Naya Raipur, Po And Ps Naya Raipur, Dist
        Raipur, Cg, Chhattisgarh

     2. C.G.State Agricultural Marketing Board Through Managing Director,
        C.G. State Agricutlureal Marketing Board, Beej Bhawan, G.E. Road,
        Telibandha, Raipur, Dist Raipur,c G, District : Raipur, Chhattisgarh

     3. Kailash Chand Sharma S/o Late Gauri Shankar Shrama Accounts
        Officer, C.G.S State Agricultural Marketing Board, Beej Bhawan,
        G.E.Road, Telibandha, Raipur, Dist Raipur, G, District : Raipur,
        Chhattisgarh

                                                           ---- Respondents

For Petitioner Mr. Malay Shrivastava, Advocate For Respondent No.1 Mr. Ali Asgar, Dy. AG For Respondent No.2 Mr. Y. S. Thakur, Advocate For Respondent No.3 Mr. Vinod Deshmukh, Advocate

Hon'ble Justice Smt. Rajani Dubey

C A V Order

1. 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.

2. 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.

3. 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, 1 st 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."

4. 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 others1.

5. Learned counsel for the respondent No.1 formally opposes the

prayer made by the petitioner.

6. 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.

7. Heard learned counsel for the parties and perused the material

available on record.

8. The Hon'ble Supreme Court in the matter of Dev Dutt (supra) held

in paras 41, 42 & 43 as under:-

1 (2008) 8 SCC 725

"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.

42. 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.

43. 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."

9. 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