Mukesh Kumar Loharia vs Union Of India
2023 Latest Caselaw 4155 MP

                                                                          1
                                         IN    THE       HIGH COURT OF MADHYA PRADESH
                                                              AT JABALPUR
                                                                   BEFORE
                                                     HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                                             ON THE 16 th OF MARCH, 2023
                                                           WRIT PETITION No. 12586 of 2012

                                        BETWEEN:-
                                        MUKESH KUMAR LOHARIA S/O MOHANLAL LOHARIA,
                                        AGED ABOUT 32 YEARS, OCCUPATION: CONSTABLE
                                        RPF,JUNNARDEO RAILWAY COLONY NEW RB 185 A
                                        JUNNARDEO CHHINDWARA (MADHYA PRADESH)

                                                                                                       .....PETITIONER
                                        (BY SHRI MAHENDRA PATERIYA - ADVOCATE)

                                        AND
                                        1.    UNION OF INDIA THROUGH :SECRETARY
                                              MINISTRY OF RAILWAY, NEW DELHI (MADHYA
                                              PRADESH)

                                        2.    GENERAL MANAGER MINISTRY OF RAILWAY
                                              POLICE FORCE HEAD QUARTER NEW DELHI
                                              (DELHI)

                                        3.    SR. DIVISIONAL SECURITY COMMISSIONER RPF,
                                              NAGPUR (MH)

                                                                                                     .....RESPONDENTS
                                        (BY SHRI CHANDRA MOHAN TIWARI - ADVOCATE)

                                              Th is petition coming on for hearing this day, th e court passed the
                                        following:
                                                                           ORDER

Petitioner's contention is that petitioner was a candidate for selection to the post of ASIPF under Rule 72 of RPF Rules. It is submitted that petitioner Signature Not Verified SAN passed all the stages of written test, outdoor test and viva voice as per the

Digitally signed by ASHWANI PRAJAPATI Date: 2023.03.16 17:10:14 IST Scheme contained in Annx.P/1, but he was denied appointment on the post of

ASI on account of the fact that his APAR's (Annual Period Appraisal Report) for the year 2009-2010 rated him below Average and, therefore, in terms of the provisions contained in Rule 70.3 which provides that a candidate whose work and conduct has been assessed as below 'Average' or whose integrity has been found to be doubtful in two or more years out of the five years preceding, his selection shall not be empaneled.

2. It is mentioned in the return that since APAR remarks for the year 2009- 2010 were below 'Average', therefore, petitioner was not granted promotion.

3. It is submitted that it is an admitted position by the respondents as is evident from Annx.R/11, issued by one Shri B.K. Pandey, Staff Officer to CSC

on 06.09.2012 that ACRs for the year 2009-2010, were not communicated before the selection of ASI under Rule 72 of RPF Rules and were conveyed by the Senior DSC/NGP vide letter dated 21.7.2012, therefore, uncommunicated remarks cannot be acted upon to deny selection/promotion to the petitioner.

4. Shri Chandra Mohan Tiwari, in his turn, submits that petitioner himself had made communications contained in Annx.P/6 & P/7, which reveal that petitioner was having knowledge of his misconduct, but the fact of the matter is that there is no document on record to point out as to when adverse ACRs for the year 2009-2010 were communicated by the authorities to the petitioner. His letters are to be read in the proper perspective and in the correct context.

5. There is communication of the respondents i.e. Staff Officer to the Chief to the Chief Security Commissioner, RPF, as contained in Annx.R/11, which in para 4 makes a categorical admission that adverse ACRs were not Signature Not Verified SAN

communicated in the year 2009-2010 to the petitioner. Therefore, as per the law Digitally signed by ASHWANI PRAJAPATI Date: 2023.03.16 17:10:14 IST

laid down by the Supreme Court in Gurdiyal Singh Fijji Vs. State of Punjab

and others (AIR 1979 SC 1622), principles of natural justice require such communication of adverse remarks. It is held that purpose of communication is to afford an opportunity to the employee to have his say in relation to said adverse remarks. In case of Amar Kant Choudhary Vs. State of Bihar (AIR 1984 SC 531), it is held that consideration for promotion connotes a fair and proper consideration. A selection Committee which had before it uncommunicated adverse remarks or deliberates at a time when the representation against such remarks is pending, cannot be said to be acting properly or in consonance with the principles of natural justice. 6. Similarly, in J.D. Shrivastava Vs. State of M.P. (AIR 1984 SC 630), Supreme Court has held that if the adverse remarks are communicated after several years, the very object of communicating entries is defeated. Such entries have been termed to be stale entries and held that they could not be relied upon to the prejudice of the employee.

7. Applying the said ratio of the judgment, this Court is of the opinion that on the basis of uncommunicated adverse remarks, no adverse finding could have been recorded against the petitioner and, therefore, impugned order is quashed. Matter is relegated to the selection committee to consider the case of the petitioner for selection/promotion as ASI ignoring the factum of uncommunicated adverse remarks. Let this exercise be completed within sixty

days of receipt of certified copy of this order.

8. In above terms, petition is allowed and disposed of.

Signature Not Verified SAN

(VIVEK AGARWAL) Digitally signed by ASHWANI PRAJAPATI Date: 2023.03.16 17:10:14 IST JUDGE A.Praj.

Signature Not Verified SAN

Digitally signed by ASHWANI PRAJAPATI Date: 2023.03.16 17:10:14 IST