M.K.Vishwakarma vs State Of M.P.
2021 Latest Caselaw 6816 MP

                                  1                            WP-12127-2003
        The High Court Of Madhya Pradesh
                   WP-12127-2003
                       (M.K.VISHWAKARMA Vs STATE OF M.P.)


Jabalpur, Dated : 25-10-2021
      Mr. Akash Chourdhary, learned counsel for the petitioner.

      Mr. Pradeep Singh, learned G.A. for the respondents No.1 to 3.

None for the private respondents.

Petitioner had originally filed O.A.No. 3674/97 before the Madhya Pradesh State Administrative Tribunal at Jabalpur under the provision of

Section 19 of the Administrative Tribunals Act, 1985.

This petition was filed challenging supersession of the petitioner on the post of Lab Assistant for which Departmental Promotion Committee was convened in the years 1992 and 1994.

Mr. Akash Choudhary, learned counsel for the petitioner has placed reliance on the judgment of Supreme Court in the case of Sukhdev Singh Vs. Union of India; (2013) 9 SCC 566 wherein Supreme Court has held that every entry in the A.C.R. whether poor, fair, average, very good or outstanding should be communicated to the employee concerned within a

reasonable time and communication of only adverse entry is not enough. Similarly, reliance is placed on the judgment of Supreme Court in Prabhudayal Khandelwal Vs. Chairman Union Public Service Commission and others ; (2015)14 SCC 427 where again it is held that there cannot be any denial of promotion on the basis of uncommunicated entries. Placing reliance on these two judgments of the Supreme Court, it is submitted that since none of the entries in the A.C.R. were communicated to the petitioner, therefore, petitioner could not have been superseded in the matter of grant of promotion, thus, petition deserves to be allowed with direction to respondents No.1 to 3 to grant promotion to the petitioner from the date when his juniors were promoted with all consequential benefits.

Mr. Pradeep Singh, learned G.A. for the respondent/ State, in his turn, submits that firstly, the petitioner has not challenged 1994 Departmental 2 WP-12127-2003 Promotion Committee proceedings, secondly as per the provisions contained in Section 21 of the Administrative Tribunals Act, 1985, limitation of one year has been prescribed and, thereafter, it can at best be stretched by another period of six months and, therefore, petitioner should have approached State Administrative Tribunal at Jabalpur latest by the year 1994 or 1995 challenging

supersession on the basis of the recommendations of D.P.C. which was convened in the year 1992. Therefore, petition is not maintainable.

After hearing learned counsel for the parties and going through the provisions contained in Section 21 of the Administrative Tribunal Act, 1985, it is evident and at this stage fairly accepted by the learned counsel for the petitioner O.A. was clearly barred by limitation. Once O.A. which has come on transfer upon closure of State Administrative Tribunal to this High Court was filed under substantive provision contained in Section 19 of the Administrative Tribunals Act, 1985, then legal position is to be examined in terms of the provisions contained in the Act of 1985. When examined from this perspective, then it is evident that O.A. was filed in the year 1997 challenging the D.P.C. proceedings and consequential promotion order dated 16.05.1994 cannot be assailed at this distance of time, therefore, this Court is of the opinion that O.A. was barred by limitation and is not entertainable.

Once it is held that petition is not maintainable as per the limitation then there is no justification in looking into the merits of the claim of the petitioner that he was never communicated any adverse entry in the C.R. Hypothetically, though not required on merits, it is evident that criteria which was fixed by the D.P.C. which had met on 25.01.1992 was that a Lab Attendant in last five years of his service should have earned atleast 3 'Kha' category A.C.R.s and the last one should not be of "Gha" category. On this touchstone, the D.P.C. proceedings reveal that petitioner had earned four A.C.Rs. under "Ga" category and one under "Kha" category. There is a note that at the relevant point of time a case under Section 498-A of the IPC and Section 3/4 of the Dowry Prohibition Act was also pending against the 3 WP-12127-2003 petitioner.

In view of said facts when petitioner failed to achieve benchmark fixed by the D.P.C., even on merits also no indulgence is required, therefore, petition fails and is hereby dismissed.

The original D.P.C. record as received from Mr. Pradeep Singh, learned G.A. is returned back to him for onward transmission to the concerned departmental authority.

(VIVEK AGARWAL) JUDGE

Vikram

Digitally signed by VIKRAM SINGH Date: 2021.10.26 11:43:16 +05'30'