Madhya Pradesh High Court
Dr. Shenal Kothari vs The State Of Madhya Pradesh on 12 February, 2024
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
1 W.A. No.1192/2023
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND
DHARMADHIKARI
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 12th OF FEBRUARY, 2024
WRIT APPEAL No. 1192 of 2023
BETWEEN:-
DR. SHENAL KOTHARI W/O DR. JAYESH KOTHARI, AGED ABOUT 54
YEARS, OCCUPATION: SERVICE 25/6, YESHWANT NIWAS ROAD,
INDORE (MADHYA PRADESH)
.....APPELLANT
(SHRI L. C. PATNE, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH PRINCIPAL SECRETARY
1. MEDICAL EDUCATION DEPARTMENT VALLABH BHAWAN
MANTRALAYA, BHOPAL (MADHYA PRADESH)
THE DIVISIONAL COMMISSIONER INDORE CHAIRMAN
2. AUTONOMOUS SOCIETY, MGM MEDICAL COLEGE 518, MAHATAMA
GANDHI ROAD, SIYAGANJ, INDORE (MADHYA PRADESH)
THE DEAN MAHATMA GANDHI MEMORIAL GOVERNMENT
3. MEDICAL COLLEGE INDORE A.B. ROAD, CRP LINES, INDORE
(MADHYA PRADESH)
PROFESSOR CUM HEAD OF DEPARTMENT OF ENT (GENERAL)
MGM MEDICAL COLLEGE A.B. ROAD, ROAD, CRP LINES, INDORE
4.
(MADHYA PRADESH)
.....RESPONDENTS
(SHRI BHUWAN GAUTAM, GOVERNMENT ADVOCATE)
Signature Not Verified
Signed by: JAGADISHAN
AIYER
Signing time: 13-02-2024
14:39:34
2 W.A. No.1192/2023
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This appeal coming on for admission this day, Justice Sushrut
Arvind Dharmadhikari passed the following:
ORDER
Heard finally with the consent of both the parties.
2. The present writ appeal has been filed under Section 2(1) of of the
Madhya Pradesh Uccha Nyayalaya Ki Nyayapeeth Ko Appeal
Adhiniyam, 2005 challenging the order dated 06/07/2023 passed in W.P.
No.14087/2022 whereby the claim of the appellant seeking quashment of
adverse ACRs for the years 2019-20 and 2021-22 and further direction to
confirm her in the service and grant all consequential benefits including
promotion etc. has been rejected.
3. Brief facts of the case are that the appellant was appointed on the
post of Assistant Professor in ENT Department, M.G.M. Medical
College, Indore on 14/06/2019. Thereafter she served in Shri Aurobindo
Institute of Medical Science and SAIIMS Hospital, Indore w.e.f.
01/12/2006 to 13/06/2019 in various capacities. As per appointment order
dated 11/06/2019 Clause 5 provided for probation of the appellant was
only for one year. There was no clause for extension of probation period.
The service conditions of the appellant are governed by the provisions of
M.P. Swashasi Chikitsa Mahavidyalayeen Shaikshanik Adarsh Seva
Niyam, 2018. As per rule 6(3) of the aforesaid rules shall have to make
recommendations regarding retention of the Medical Teacher in the
services of autonomous society based upon the educational and medical
work performed by the Medical Teacher during the probation period. As
per the appointment order her period of probation expired on 13/06/2020.
Admittedly no order for extension of probation period was passed nor the
appellant was graded as confirmed upon completion of one year of
service. During the aforesaid period i.e. 2019-20 and 2021-22 nothing
adverse was passed against the appellant. It is only the letter dated
07/10/2020 issued allegedly communicating the ACRs grades, then, she
came to know about the down grading ACRs.
4. Learned counsel for the appellant submitted that no show-cause
notice was ever issued or down graded ACRs were communicated to the
appellant at any point of time. The confirmation depended on her
performance. The appellant had no opportunity at all to make a
representation, therefore, in such a situation the respondents ought to
have confirmed the services of the appellant.
5. Learned counsel for the appellant submits that the learned Single
Judge erred in coming to the conclusion that the appellant had not
submitted her representation for up-gradation of ACRs, therefore, granted
liberty to file representation in respect of down graded ACRs. In fact the
main claim in the petition was with regard to confirmation due to number
years of services rendered by the appellant as well as non-communication
of ACRs, therefore, the services of the appellant ought to have been
confirmed. It is argued that even in the reply filed in the writ petition, the
respondents submitted that Annexure-R/5 dated 11/11/2020 and
Annexure-R/6 are the letters issued by communicating adverse remarks
to the appellants, therefore, the learned Single Judge has rightly disposed
of the writ petition.
6. Heard the learned counsel for both the parties.
7. The system of Confidential Reports has two principle objectives
and the Reporting Officer should have a very clear perception of these
objectives. The first and foremost is to improve the performance of the
subordinate in his present job. The second objective is to assess the
potentialities of the subordinate and prepare through appropriate
feedback and guidance for future possible opportunities in service. To a
great extent, the second objective is dependent on the achievement of the
first.
8. It is the duty of the superior officer to give the subordinate a clear
understanding of the tasks to be performed and to provide requisite
resources for his performance. The subordinate is required to contribute
to the best of his capacity to the qualitative and quantitative achievement
of the given tasks making optimum use of the resources provided. Also,
both the superior and his subordinate have to be necessarily aware of the
ultimate goal of their organization, which can be achieved only through
the joint efforts of both of them. This is the basic philosophy underlying
any system of Confidential Report.
9. The performance of every Government servant is assessed
annually through his Confidential Report, which is an important
document providing the basic and vital inputs for assessing the
performance of the Government servant and for assessing his suitability
for his further advancement in his career on occasions like confirmation,
promotion, crossing of efficiency bar, selection for deputation and
selection for foreign assignment etc.
10. The issue which arises for consideration before this Court is
"Whether down graded ACRs for the year 2019-20 and 2021-22 falls
within the ambit of adverse remarks and whether under the law the
respondents were required to communicate the said remarks to the
appellant."
11. Admittedly from perusal of the Annexure-R/5 and Annexure-R/6,
it cannot be said that adverse remarks / ACRs were ever communicating
to the appellant. The issue of non-communication of down graded entries
to the appellant is arbitrary and violative of principles of natural justice.
Suppose if any entry operates as an adverse entry, has been subject
matter of the debate in several matters before the Apex Court and various
High Courts in the Country and the issue is no more res integra.
12. Reliance is placed on the decision of Supreme Court rendered in
U.P. Jai Nigam vs. Prabhat Chandra Jain, reported in AIR 1996 (SC)
1661, wherein in para 3 following has been laid down:-
"3. We need to explain these observations of the High Court.
The Nigam has rules, whereunder an adverse entry is required
to be communicated to the employee concerned, but not down
grading of an entry. It has been urged on behalf of the Nigam
that when the nature of the entry does not reflect any
adverseness that is not required to be communicated. As we
view it the extreme illustration given by the High Court may
reflect an adverse element compulsorily communicable, but if
the graded entry is of going a step down, like falling from 'very
good' to 'good' that may not ordinarily be an adverse entry
since both are a positive grading. All what is required by the
Authority recording confidentials in the situation is to record
reasons for such down grading on the personal file of the
officer concerned, and inform him of the change in the form of
an advice. If the variation warranted be not permissible, then
the very purpose of writing annual confidential reports would
be frustrated. Having achieved an optimum level the employee
on his part may slacken in his work, relaxing secure by his one
time achievement. This would be an undesirable situation. All
the same the sting of adverseness must, in all events, be not
reflected in such variations, as otherwise they shall be
communicated as such. It may be emphasized that even a
positive confidential entry in a given case can previously be
adverse and to say that an adverse entry should always be
qualitatively damaging may not be true. In the instant case we
have seen the service record of the first respondent. No reason
for the change is mentioned. The down grading is reflected by
comparison. This cannot sustain. Having explained in this
manner the case of the first respondent and the system that
should prevail in the Jal Nigam, we do not find any difficulty in
accepting the ultimate result arrived at by the High Court.
The Special Leave Petiton is therefore, dismissed."
13. Reliance is also placed on the judgment passed by the Apex Court
in Dev Dutt vs. Union of India and others, reported in AIR 2008 (SC)
2513.
14. The question fell for consideration of the Supreme Court in the
context of facts that Dev Dutt had joined Border Roads Engineering
Service and as per rules he was eligible to be considered for promotion to
the post of Superintending Engineer. In the D.P.C held on 16.12.1994, he
was not held to be eligible for promotion, but his juniors were selected
and promoted to the rank of Superintending Engineer. He did not have
"Very Good" entry but only "Good" entry for the year 1993-94, as such,
was not considered for promotion to the post of Superintending Engineer.
The Apex Court held that every entry must be communicated to the
employees concerned so that he may have an opportunity of making a
representation against it, if he is aggrieved. In Paras 10,11,14,19, 20, 25,
36, 39, 45 to 47 following has been laid down:-
"10. In the present case the bench mark (i.e. the essential
requirement) laid down by the authorities for promotion to the
post of Superintending Engineer was that the candidate should
have 'very good' entry for the last five years. Thus in this
situation the 'good' entry in fact is an adverse entry because it
eliminates the candidate from being considered for promotion.
Thus, nomenclature is not relevant, it is the effect which the
entry is having which determines whether it is an adverse entry
or not. It is thus the rigours of the entry which is important, not
the phraseology. The grant of a `good' entry is of no
satisfaction to the incumbent if it in fact makes him ineligible
for promotion or has an adverse effect on his chances.
11. Hence, in our opinion, the 'good' entry should have been
communicated to the appellant so as to enable him to make a
representation praying that the said entry for the year 1993-94
should be upgraded from 'good' to 'very good'. Of course, after
considering such a representation it was open to the authority
concerned to reject the representation and confirm the 'good'
entry (though of course in a fair manner), but at least an
opportunity of making such a representation should have been
given to the appellant, and that would only have been possible
had the appellant been communicated the 'good' entry, which
was not done in this case. Hence, we are of the opinion that the
non- communication of the 'good' entry was arbitrary and
hence illegal, and the decisions relied upon by the learned
counsel for the respondent are distinguishable.
14. 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 bench mark or not. Even if there is no bench
mark, 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 `average' or `fair' entry certainly has less chances of
being selected than a person having a `very good' or
`outstanding' entry.
19. In our opinion, every entry in the A.C.R. 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 Court in
Maneka Gandhi vs. Union of India (supra) that arbitrariness
violates Article 14 of the Constitution.
20. Thus it is not only when there is a bench mark 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.
25. In the present case, the action of the respondents in not
communicating the 'good' entry for the year 1993-94 to the
appellant is in our opinion arbitrary and violative of natural
justice, because in substance the `good' entry operates as an
adverse entry (for the reason given above).
36. In our opinion, fair play required that the respondent
should have communicated the 'good' entry of 1993-94 to the
appellant so that he could have an opportunity of making a
representation praying for upgrading the same so that he
could be eligible for promotion. Non-communication of the
said entry, in our opinion, was hence unfair on the part of the
respondent and hence violative of natural justice.
39. In the present case, we are developing the principles of
natural justice by holding that fairness and transparency in
public administration requires that all entries (whether poor,
fair, average, good or very good) in the Annual Confidential
Report of a public servant, whether in civil, judicial, police or
any other State service (except the military), must be
communicated to him within a reasonable period so that he
can make a representation for its upgradation. This in our
opinion is the correct legal position even though there may be
no Rule/G.O. requiring communication of the entry, or even if
there is a Rule/G.O. prohibiting it, because the principle of
non-arbitrariness in State action as envisaged by Article 14 of
the Constitution in our opinion requires such communication.
Article 14 will override all rules or government orders.
45. 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.
46. 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.
47. 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."
15. We are also supported by the law laid down by the Division Bench
of the Delhi High Court on the issue in question in case titled
Commandant V. S. Shekhawat vs. Union of India and others, decided
on 03/09/2019, wherein in paras 17, 19, 22 and 26 following has been
observed:-
"17. It must be noted that the judgment of the Supreme
Court in UP Jal Nigam v. Prabhat Chandra Jain (1996) 2
SCC 363 referred to in the above OM was distinguished
by the Supreme Court in Dev Dutt v. Union of India
(2008) 8 SCC 725. There, the Supreme Court made it
explicit that "every entry must be communicated to the
employee concerned, so that he may have an opportunity
of making a representation against it if he is aggrieved".
The Supreme Court rejected the contention of the
Respondent Union of India that only an adverse entry
needs to be communicated to an employee. The Supreme
Court emphasized that it was not the nomenclature that
was relevant, but the "effect which the entry is having
which determines whether it is an adverse entry or not".
In particular, it was pointed out that "the grant of „good‟
entry is of no satisfaction to the incumbent if it in fact
make it ineligible for promotion or has an adverse effect
on his chances".
19. Subsequently, a three judge bench of the Supreme
Court in Sukhdev Singh v. Union of India AIR 2013 SC
2741 considered the issue and in para 8 held as under:
"In our opinion, the view taken in Dev Dutt that
every entry in ACR of a public servant must be
communicated to him/her within a reasonable
period is legally sound and helps in achieving
threefold objectives. First, the communication of
every entry in the ACR to a public servant helps
him/her to work harder and achieve more that
helps him in improving his work and give better
results. Second and equally important, on being
made aware of the entry in the ACR, the public
servant may feel dissatisfied with the same.
Communication of the entry enables him/her to
make representation for upgradation of the
remarks entered in the ACR. Third, communication
of every entry in the ACR brings transparency in
recording the remarks relating to a public servant
and the system becomes more conforming to the
principles of natural justice. We, accordingly, hold
that every entry in ACR - poor, fair, average, good
or very good - must be communicated to him/her
within a reasonable period."
22. In the present case, admittedly the Petitioner was
given only a copy of the adverse remarks and not the ACR
containing the below benchmark grading at the relevant
time. This deprived the Petitioner of an opportunity to
seek an upgradation of his ACR, as he was not made
aware of that fact. He could not have anticipated that such
grading would affect his future promotion.
26. A direction is now issued to the Respondents to hold
a review DPC to consider the Petitioner‟s prayer of
upgradation of his ACR/APAR of 2002- 03 consequent
upon the expunction of the adverse remarks therein. This
exercise be completed within a period of six weeks from
today. Within a further period of four weeks thereafter,
orders will be issued granting the notional seniority with
reference to the promotion to the Petitioner to the ranks of
2IC and Commandant and this should be communicated
to the Petitioner not later than two weeks thereafter. All
consequential benefits will ensure to the Petitioner. The
petition is allowed with the above directions"
16. Thus, in view of the aforesaid pronunciation, the non-
communication of ACRs falls within the ambit of adverse remarks in the
present case and as such no ACRs were required to be communicated to
the appellant.
17. Learned Government Advocate for the respondents/State is unable
to substantiate as to how the ACRs for the year 2019-20 and 2021-22
were communicated to the appellant. Having failed to do so, the action of
the respondents is not justified and cannot sustain the test of law and is
liable to be set-aside.
18. Moreover, the findings of learned Single Judge that the ACRs have
already been communicated to the appellant, therefore, she could have
filed a representation cannot be countenanced. It is not in dispute that the
appellant is in service since the initial date of appointment and she cannot
be kept on probation forever.
19. In view of the aforesaid, order dated 06/07/2023 passed by the
learned Single Judge in W.P. No.14087/2022 is hereby set-aside. The
respondents are directed to communicate the ACRs of the appellant for
the year 2019-20 and 2021-22 within a period of one month from the
date of receipt of certified copy of this order. On being communicated
the entries, the appellant can make a representation, if she chooses
against the said entries within a period of one month thereafter, and the
said representation shall be decided by the Concerned Authority within a
period of one month thereafter.
20. If the entries of the appellant is up-graded, then, the appellant shall
be considered for confirmation of her services from the date of
entitlement and all consequential benefits including promotion etc. shall
be given to the appellant immediately on expiry of period of probation.
21. With the aforesaid directions, present writ appeal stands allowed.
(S.A. Dharmadhikari) (Devnarayan Mishra)
Judge Judge
Aiyer*
