Amaresh Shrivastava vs State Of Madhya Pradesh
2021 Latest Caselaw 2125 MP

                         1                      W.P.No.4098/2007

         HIGH COURT OF MADHYA PRADESH
               BENCH AT GWALIOR

         SB: Hon.Shri Justice S.A.Dharmadhikari

                             W.P.No.4098/2007

                         Amaresh Shrivastava
                                   Vs.
                     State of M.P. and another
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Shri D.P.Singh, learned counsel for the petitioner.
Shri Neelesh Singh Tomar, learned Government Advocate
for the respondents.
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                                ORDER

07/06/2021

Challenge in this petition under Article 226/2007 of

the Constitution of India is to the letter dt.26.07.2005

(Annexure P/1), by which the adverse remark has been

communicated to the petitioner and also to the

communication dt.13.03.2007 (Annexure P/2), by which the

representation filed by the petitioner has been rejected.

2. The brief facts leading to filing of this case are that

the petitioner at the relevant time was working on the post of

Dy.Collector, District Morena and had unblemished service

record throughout the career. Vide impugned communication

dt.26.07.2005 (Annexure P/1), the petitioner was

communicated an adverse entry recorded in the Annual

Confidential Report (ACR) for the period from 08.10.2004

to 31.03.2005. Being aggrieved, the petitioner has filed a

representation, which was also rejected vide communication

dt.13.03.2007 (Annexure P/2) without objectively

considering the grounds raised in the representation.

3. Learned counsel for the petitioner contended that the

adverse remark has been recorded in total violation of the

rules, regulations and guidelines issued by the respondents.

Further contention of the petitioner is that the said remark

has been recorded without any basis and therefore can not

be sustained. Learned counsel submitted that the

communication dt.26.07.2005 goes to show that the period

taken into consideration is only 5 months and 22 days i.e.

less than six months and it is being reported in the letter in

the first clause that the work of the petitioner has been found

to be "good" for the said period. The quality is "satisfactory,

attitude towards the work is "good". Decision making

process and ability of taking initiative and inspiration is also

"good". Subsequently, in the later part of the letter,

following adverse remarks have been made in the Annual

Confidential Report of the petitioner :-

(i) Attitude towards the work "lacking dedication",

(ii) Initiative "incapable of taking extra responsibility",

(iii) Personnel relation and team work "lacking team

spirit",

(iv) Relation with general public "hesitation in meeting

general public",

(v) General "Shri Shrivastava has lacked in team spirit

during his tenure under him".

Thus, on bare perusal of the letter communicating the

adverse remark in the confidential report, the same goes to

show that it is highly self contradictory. Therefore, in such

circumstances, the adverse ACR of the petitioner is totally

unjustified and can not be sustained.

4. Learned counsel in support of his contention has

relied upon the judgment of the Apex Court in the case of

Sukhdeo Vs. The Commissioner Amravati Division,

Amravati and another reported in (1996) 5 SCC 103 and

State of U.P. Vs. Yamuna Shankar Mishra reported in

(1997) 4 SCC 7. Learned counsel further contended that the

adverse remarks communicated to the petitioner are vague

and cryptic without any instance of specific failure on the

part of the petitioner in respect of these remark. The adverse

remarks were recorded in a biased manner. On these

grounds, he prays for expunging the adverse remarks

recorded in the ACR.

5. On the other hand, learned Government Advocate for

the respondents/State submitted that the petitioner has not

assailed the ACR for the period 2004 to 2005 in the present

writ petition, as such, the writ petition itself is not

maintainable. He further submitted that on perusal of the

record, it can be seen that the petitioner was found to be

seriously lacking dedication, was in capable in taking extra

responsibility, was also lacking team spirit, he had hesitation

in meeting general public, there was no team spirit, as such,

no interference is required. He further contended that the

jurisdiction of this Court while exercising its power under

Article 226 of the Constitution of India is very restricted.

This Court does not sit as an appellate authority. The judicial

review is permissible only to the extent of finding whether

the process in reaching the derision has been observed

correctly. The decision itself can not be subjected to judicial

review. In support of his contention, learned Government

Advocate has relied upon the judgment of the Apex Court in

the case of Amrik Singh Vs. Union of India and others

reported in (2001) 10 SCC 424 and M.V.Thimmaiah and

others Vs. Union Public Service Commission and others

reported in (2008) 2 SCC 119 and State of Orissa Vs. Jugal

Kishore Khatua reported in 1997 SCC (L&S) 1768. On

the aforesaid basis, he prays for dismissal of the writ petition

being devoid of merit and substance.

6. I have heard the learned counsel for the parties and

have gone through the record of the case.

7. There can be no dispute with regard to the contention

of the learned counsel for the petitioner that before forming

an opinion to be adverse, reporting officers writing

confidential report should share the information and

confront the officer with the same. The opportunity must be

given to the official to correct his shortcomings and improve

himself. If the officer fails to correct his conduct or improve

himself in performance of his duty, thereafter the reporting

officer is obliged to record the same in his confidential

report. On perusal of the record, it is seen that the adverse

entry has been communicated to the petitioner. The

observations are based upon the records, which point out the

shortcomings of the petitioner. The representation submitted

by the petitioner has been duly considered and rejected by

the competent authority. No interference in the adverse

remarks communicated to the petitioner is called for,

specially in the light of the restricted jurisdiction of this

Court in the matter of judicial review. While exercising the

writ jurisdiction under Article 226 of the Constitution of

India, the court does not act as an appellate authority but has

limited scope to interfere with the recorded ACR actuated

with malafide or statutory provisions having not been

followed. In the present case, the assessment of the

petitioner has been made based on the record which is dully

supported by the related evidence and after giving prior

opportunity to the petitioner. The observation of the

assessing officer is fully justified and is not based on mere

conjectures and surmises, which would bring it within the

power of this Court to exercise the judicial review.

8. In view whereof, no ground for interference by this

Court in the present case is made out. Accordingly, finding

no merit in this petition, the same is hereby dismissed.

No order as to the costs.

(S.A.Dharmadhikari) Judge SP

SANJEEV KUMAR PHANSE 2021.06.07 20:07:39 +05'30'