Madhya Pradesh High Court
Ramanad Pandey vs The State Of Madhya Pradesh on 9 December, 2022
Author: Maninder S. Bhatti
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 9 th OF DECEMBER, 2022
WRIT PETITION No. 9938 of 2009
BETWEEN:-
RAMANAD PANDEY S/O LATE SHRI RAMAVTAR
PANDEY, AGED ABOUT 45 YEARS, OCCUPATION:
OFFICIATING CLERK DHAWARI, BETWEEN STREET NO.
4 & 5, WARD NO. 30, SATNA (MADHYA PRADESH)
.....PETITIONER
(BY SHRI UMA SHANKAR JAISWAL, ADVOCATE )
AND
1. THE STATE OF MADHYA PRADESH THROUGH
THE PRINCIPAL SECRETARY DEPARTMENT OF
COOPERATION MANTRALAYA, BHOPAL
(MADHYA PRADESH)
2. REGISTRAR COOPERATIVE SOCIETIES, GOVT. OF
M.P. BHOPAL (MADHYA PRADESH)
3. CHIEF EXECUTIVE OFFICER DISTRICT CENTRAL
COOPERATIVE BANK LIMITED SATNA SATNA
(MADHYA PRADESH)
4. SHRI GANGA PRASAD PATHAK OCCUPATION:
CLERK CLASS IV DISTRICT CENTRAL
COOPERATIVE BANK LIMITED AMARPATAN
DISTRICT SATNA (MADHYA PRADESH)
.....RESPONDENTS
(BY MS. SHIKHA SHARMA, PANEL LAWYER)
This petition coming on for admission this day, th e court passed the
following:
ORDER
There is a reply filed by the contesting respondent No.3, but no one
Signature Not Verified
Signed by: SAVITRI PATEL
Signing time: 12/14/2022
3:30:07 PM
entered appearance on behalf of respondent no.3. On the last date as well no
one entered appearance on behalf of respondent no.3.
The petitioner has filed this petition under Article 226/227 of Constitution
of India while praying for following reliefs:-
"(i) Hon'ble Court be pleased to issue a writ in the nature of certiorari
quashing the impugned orders dated 21.07.2007 and 29.04.2008 Annexure
P-6 and P/11 as arbitrary, illegal and void.
(ii) Hon'ble Court be pleased to direct the respondents no.1 to 3 to
consider case of the petitioner for promotion to the post of clerk, class iv
and if found fit to promote him w.e.f. date of promotion of respondent
no.4 with all consequential benefits such as difference of salary,
increments, seniority etc.
(iii) Any other relief deemed fit in the facts and circumstances of the case.
(iv) Costs of the petition."
As stated in the memorandum of the petition, the petitioner herein was
initially appointed as Peon with the respondents vide order dated 25.04.1988
(Annexure P/1). Pursuant to the order of appointment, the petitioner joined
services on 26.04.1988. Eventually, the petitioner was confirmed on the said
post vide order dated 15.09.1993 (Annexure P/2). Thereafter, the petitioner was
appointed against the post of Officiating Clerk/Cashier vide order dated
18.04.1995 (Annexure P/3). In the meantime, a seniority list showing the
position of employees working against the post of Peon was published on
31.03.2007 (Annexure P/4) and in the said list the name of the petitioner was at
Serial No. 24 whereas the name of private respondent, namely, Mr. Ganga
Prasad Pathak (respondent No.4) was at Serial No. 36. Later on, the
respondents issued an order dated 21.07.2007 (Annexure P/6) by which, Mr.
Ganga Prasad Pathak/private respondent was promoted against the post of
Grade-IV Clerk. Assailing the order dated 21.07.2007 (Annexure P/6), this
petition is filed by the petitioner.
Signature Not Verified
Signed by: SAVITRI PATEL
Signing time: 12/14/2022
3:30:07 PM
Learned counsel for the petitioner contends that the petitioner herein is
undisputedally senior to the private respondent i.e. respondent No.4 which is
evident from a perusal of the gradation list inasmuch as, the name of the
petitioner appears at Serial No. 24 and his initial date of appointment is being
shown as 26.04.1988 whereas the name of the private respondent i.e Mr. Ganga
Prasad Pathak appears at Serial No. 36 and his appointment is being shown as
21.07.1994. It is contended by the counsel that the DPC which convened in
2007 to consider the cases of promotion, laid down a criteria which has been
detailed in Annexure P/5 and as per the stand of the respondent in the return as
the petitioner herein had one "ka" and two "kha" entries in his Annual
Confidential Report, therefore, the petitioner was not meeting the criteria which
was laid down by the DPC Committee. This is the sole ground on which the
petitioner has not been conferred with the benefit of promotion. It is further
contended by the counsel that the Annual Confidential Reports which have been
considered by the DPC, were never communicated to the petitioner and there is
specific averment made in paragraph 6.5 of the petition and also in paragraph 2
of the rejoinder after upon receipt of the return. The said uncommunicated
Annual Confidential Reports could not have been made basis to deprive the
petitioner from his legitimate claim of promotion against the post of Grade-IV
Clerk. Counsel for the petitioner while placing reliance upon the decision of Dev
Datt vs. Union of India and Ors. reported in (2008) 8 SCC 775 submits that
the impugned order deserves to be quashed and the respondent be directed to
consider the case of the petitioner for promotion against the post of Grade-IV
Clerk w.e.f. 21.07.2017 i.e. the date when private respondent was so promoted.
A perusal of the reply filed by the respondent no.3 reveals that as the
Signature Not Verified
petitioner herein had one "ka" and two "kha" entries in his Annual Confidential
Signed by: SAVITRI PATEL
Signing time: 12/14/2022
3:30:07 PM
Report, thus, the petitioner was not found entitled to be promoted against the
post of Grade-IV Clerk. Accordingly, the promotion order was issued while
taking into consideration the criteria laid down in DPC which finds mention in
Annexure P/5 dated 21.05.2007 and as the petitioner's Annual Confidential
Reports were not meeting the criteria as stipulated in order dated 21.05.2007
(Annexure P/5), the petitioner was not found fit for promotion and according to
it. It is prayed in the return that the present petition be dismissed.
No other point is pressed by the parties.
Heard the submission advanced on behalf of the petitioner and perused
the record.
In the present case, the petitioner's candidature for consideration of his
name for promotion against the post of Grade-IV Clerk has been declined only
on the ground that the Annual Confidential Reports of the petitioner pertaining
to years 2003-2004, 2004-2005 and 2005-2006 were considered by the DPC
and it was found that there were one "ka" and two "kha" entries. The required
Bench mark was that the candidate should possess two "kha" entries and One
"ka" entries, then only his case for promotion should be considered. The
aforesaid averments have been made by the respondent in paragraph 3 of the
return.
The Annual Confidential Reports, which were considered by the DPC
have not been communicated to the petitioner inasmuch as, specific averment
made in the petition have not been disputed by the respondent by filing their
return. The said contentions have been further repeated by the petitioner in
paragraph 2 of his rejoinder as well and the same has also not been
controverted.
Signature Not Verified
Signed by: SAVITRI PATEL
Signing time: 12/14/2022
3:30:07 PM
At this juncture it is profitable to reproduce paras 13, 17 and 18 of the
judgment rendered in Dev Dutt (supra) :
"1 3 . In our opinion, every entry (and not merely a
poor or adverse entry) relating to an employee under the
State or an instrumentality of the State, whether in civil,
judicial, police or other service (except the military) must be
communicated to him, within a reasonable period, and it
makes no difference whether there is a benchmark or not.
Even if there is no benchmark, non-communication of an
entry may adversely affect the employee's chances of
promotion (or getting some other benefit), because when
comparative merit is being considered for promotion (or
some other benefit) a person having a "good" or
"œaverage" or "œfair" entry certainly has less
chances of being selected than a person having a "very
good" or "outstanding" entry.
17. In our opinion, every entry in the ACR of a public
servant must be communicated to him within a reasonable
period, whether it is a poor, fair, average, good or very good
entry. This is because non-communication of such an entry
may adversely affect the employee in two ways : (1) had the
entry been communicated to him he would know about the
assessment of his work and conduct by his superiors, which
would enable him to improve his work in future; (2) he would
have an opportunity of making a representation against the
entry if he feels it is unjustified, and pray for its upgradation.
Hence, non-communication of an entry is arbitrary, and it
has been held by the Constitution Bench decision of this
Signature Not Verified
Signed by: SAVITRI PATEL
Signing time: 12/14/2022
3:30:07 PM
Court in Maneka Gandhi v. Union of India [(1978) 1 SCC
248 : AIR 1978 SC 597] that arbitrariness violates Article 14
of the Constitution.
18. Thus, it is not only when there is a benchmark but
in all cases that an entry (whether it is poor, fair, average,
good or very good) must be communicated to a public
servant, otherwise there is violation of the principle of
fairness, which is the soul of natural justice. Even an
outstanding entry should be communicated since that would
boost the morale of the employee and make him work
harder."
The argument of the learned counsel for the State that, prior to the
judgment delivered in Dev Dutt (supra), communication of ACRs was not
required, in the considered view of this Court, is misconceived. Non-
communication of ACRs virtually eliminates the chance of promotion of an
employee and the same has serious and adverse effect on the service career of
an employee.
The Annual Confidential Reports were made basis to deprive the
petitioner from his rightful claim for promotion against the promotional post.
Non-communication of such Annual Confidential Reports have vitiated the
DPC proceedings.
In view of the aforesaid, instead of interfering with the impugned order
dated 21.07.2007, the present petition stands disposed of with a direction to the
respondent to convene a review DPC and consider the case of promotion of
the petitioner against the post of Grade-IV Clerk w.e.f. 21.07.2007 within a
period of 90 days from the date of production of certified copy of the order
Signature Not Verified
Signed by: SAVITRI PATEL
Signing time: 12/14/2022
3:30:07 PM
passed today. If the petitioner otherwise found entitled for promotion, he shall
be promoted w.e.f. 21.07.2007 with all consequential benefits.
It is made clear that the aforesaid exercise shall be completed by the
respondent without being influenced by the order dated 29.04.2008 contained in
Annexure P/11.
Accordingly, the writ petition is allowed in the above terms.
(MANINDER S. BHATTI)
JUDGE
sp
Signature Not Verified
Signed by: SAVITRI PATEL
Signing time: 12/14/2022
3:30:07 PM
