Madhya Pradesh High Court
Asha Ram Singh vs The State Of Madhya Pradesh on 1 April, 2025
Author: Vishal Mishra
Bench: Vishal Mishra
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 1 st OF APRIL, 2025
WRIT PETITION No. 39063 of 2024
ASHA RAM SINGH
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Dhananjay Ku. Mishra - Advocate for the petitioner.
Shri Swapnil Ganguly - Deputy Advocate General for respondents/State.
Shri Aditya Pachori - Advocate for respondent No.3.
Shri Sanjay K Agrawal - Senior Advocate with Shri S. K. Sharma -
Advocate for respondent No.4.
ORDER
The present petitioner has been filed assailing the orders dated 17.12.2021,
28.01.2022 and 30.10.2024 passed by the respondents whereby the authorities
have unlawfully analysed the proceedings of DPC and has upgraded the ACR's of
the private respondents without assigning any reason and in turn affecting the
promotional prospects of the petitioner.
2. It is the case of the petitioner that he was appointed on 10.07.1992 on the
post of Assistant Engineer in the respondent/department. He was further promoted
on the post of Executive Engineer on 31.12.2002. The respondent No.1 has
published a gradation list dated 04.12.2013 for the post of Assistant Engineer
wherein the educational qualification, date of appointment etc. was mentioned.
The name of the petitioner finds place at serial No.102. Further, a gradation list
dated 30.03.2016 was issued for Executive Engineer wherein the date of
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promotion and other details of the petitioner were mentioned. His name finds place
at serial No.62.
3. Respondent No.4 was also appointed through direct recruitment on
10.07.1992 on the post of Assistant Engineer. His name finds place at serial No.95
in the gradation list of 04.12.2013 and at serial No.56 published on 30.03.2016.
The petitioner as well as respondent No.4, both being Officers of the analogous
post of respondent department, therefore their Service conditions and promotions
are regulated as per the provisions of M.P. Public Works Department (Gazetted)
Engineering Recruitment Rules, 1969 read with M.P. Public Service (Promotion)
Rules, 2002. As per above stated Rules, the promotion of the Executive Engineers
to the Post of Superintending Engineer in the Respondent No.1 Department is
done on the basis of the Recommendations of the Departmental Promotion
Committee under the chairmanship of the Respondent No.3, which is under the
chairmanship of the Respondent No.3 and the criteria which is required to be
considered by DPC is 'Merit-cum-Seniority'.
4. The direction for suitability for promotion is provided under Rule 7 of the
M.P. Public Service (Promotion) Rules, 2002. The General Administrative
Department has issued a circular/notification dated 29.09.2004 to the effect that
the Departmental Promotion Committee shall make a relative
valuations/comparative assessment of the merits of Executive Engineers who are
within the zone of consideration assessment of the merits of Executive Engineers
who are within the zone of consideration on the basis of their service records. The
Circular dated 29.09.2004 further provides for awarding of marks in terms of the
criteria provided therein. In pursuance to the same the meeting of DPC under the
chairmanship of respondent No.3 was held on 17.08.2012 and 24.08.2012 for
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analyzing the past 5 years i.e. from 2007 to 2011 on the basis of Annual
Confidential Reports of each officer. The case of the petitioner as well as
respondent No.4 was considered by the Committee. The DPC assessed the ACRs
of respondent No.4 and observed that there is no iota of any excellent performance
during the period 01/04/2006 to31/03/2007 and therefore the grading "A+" i.e.
"Outstanding" was erroneous and the D.P.C. has found that no exceptional reasons
were assigned in the ACR 2007 for granting outstanding ACR therefore, his ACR
for 2007 was downgraded from A+ to A category.
5. It is argued that there is a procedure provided for filing of an appeal or
representation to the accepting authority before the end of the next calendar year.
The respondent No.4 has chosen not to challenge the same at any point of time.
Thereafter, the DPC again considered the case of the respondent No.4 and
upgraded the ACR from 'A' to A+ without assigning any reason for the same,
despite of the fact that there was a specific observation made in the earlier round
when the DPC considered the case, recording the fact that there are no exceptional
reasons to record outstanding ACRs for the year 2007. But, for the reasons best
known to the authorities, the promotion order of respondent No.4 was passed for
the post of Superintending Engineer which in turn affects the seniority of the
petitioner. The petitioner admittedly was entitled to be placed under the
outstanding category and entitled to be placed in the list of toppers but the case of
the petitioner was kept in a closed envelop owing to a disciplinary proceedings
initiated against him. Subsequently, the petitioner was exonerated in a
departmental enquiry on 22.12.2012 and after opening the sealed cover is was
found that the petitioner is having all five outstanding or A+ category and he was
awarded 20 marks. Therefore, he was promoted with retrospective effect from
01.10.2012 to the post of Superintending Engineer vide order dated 03.06.2014.
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The name of the Petitioner was placed above respondent No.4, on account of
having he securing full 20 marks, and the respondent No.4, was placed below the
petitioner in the seniority list, as is reflected from the Gradation List of
Superintending Engineers published on 1.4.2015. Thereafter, after a lapse of 7
years on the basis of the recommendation submitted by the respondent No.4
before the respondent No.1 the upgradation of the ACR for the year 2007 was by
the Departmental Promotion Committee under the Chairmanship of Respondent
No.3 and the earlier decision taken by the authority was reviewed and the ACR of
respondent No.4 was illegally upgraded from 'A' to 'A+'. A Review DPC meeting
was held on 17.12.2021.
6. It is argued that reasons are required to be assigned by the authorities for
granting outstanding ACRs. No reasons were assigned by the DPC while re-
considering the case of the petitioner that too after a lapse of seven years. The
gradation list was issued showing the position of seniority in the year 2015. The
said decision taken by the authorities is adversely affecting the seniority of the
petitioner. Therefore, this petition has been filed.
7. On notice being issued a reply has been filed by the respondents No.1 and 2
as well as by respondent No.4.
8. Counsel appearing for the respondent No.4, apart from denying all the
petition averments has given reasons for upgradation of his ACRs from 'A' to 'A+'.
It is argued that petitioner as well as the respondent No.2 both were appointed as
Assistant Engineer vide order dated 10.07.1992 and the respondent No.4 was
shown to be senior to the petitioner as his name appears as Sr. No.534 and the
name of the petitioner was shown at Sr. No.546. In the gradation list of Assistant
Engineers as on 01.04.2001. Thereafter, they were promoted to the post of
Executive Engineer on 31.12.2002. In the gradation list with respect to Executive
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Engineer (Civil), the respondent No.4 was placed at Sr. No.155 and the petitioner
was placed at S. No.166 and the gradation list showing position as on 01.04.2001.
Therefore, the respondent No.4 is admittedly senior to the petitioner.
9. It is further contended that the DPC held on 17.08.2012/24.08.2012 for
considering the candidature of eligible candidates from the post of Executive
Engineer to the post of Superintending Engineer (Civil) criteria was merit cum
seniority. The respondent no.4 was found to be fit for promotion and he was
promoted vide order dated 01.10.2012 to the post of Superintending Engineer
(Civil). The DPC while considering the case of the petitioner also considered the
case of the respondent, however, since the departmental enquiry was pending
against the petitioner, his case was kept in the seal cover. After concluding of the
departmental enquiry when he was exonerated, the committee again considered
the case and considering the fact that all the ACRs of the petitioner of 5 years i.e.
from 2007 to 2011 were found to be outstanding, he was promoted to the post
Superintending Engineer vide order dated 03.06.2014 with effect from
01.10.2012.
10. The gradation list of Superintending Engineer was prepared in the year
2015 wherein the name of the petitioner was placed over and above of respondent
No.4. Being aggrieved by the change in the seniority of respondent No.4 on
account of downgrading of ACR, he immediately submitted a representation on
19.11.2014 to the effect that the said downgrading of ACR for the year ending
March 2007 has occurred due to oversight and no reasons are assigned by the
DPC for downgrading the ACT of the respondent No.4 from 'A+' to 'A' category
and sought upgradation of ACR from 'A' to 'A+'. The same has resulted in grave
injustice to the overall assessment of the respondent No.4. The downgrading of
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ACR for the respondent No.4 runs contrary to the directions issued vide Circular
dated 06.07.2002 as well as amended Circular dated 29.09.2004 as the same
mandatorily postulates for assigning reason by the DPC while downgrading the
ACR.
11. It is contended that the reporting officer had awarded an outstanding grade
i.e. 'A+' to the respondent No.4 for the year 2007 that has been downgraded to 'A'
by the DPC while considering the case of respondent No.4 for promotion without
assigning any reason for the same. The downgrading of ACR was never
communicated to the respondent no.4. The aforesaid fact came to the knowledge
of the respondent no.4 when the promotion order of petitioner was passed and he
was placed over and above of respondent No.4 in the seniority list. He
immediately filed a representation to the authorities. Therefore, there is no delay
in filing the representation. On the representation submitted by the petitioner his
case was again considered by the review DPC which was held on 17.12.2021. The
review DPC observed that the ACR of the petitioner has been downgraded without
any reason and arrived at a conclusion to maintain the original ACR i.e. 'A+'
(outstanding) in place of downgraded ACR and accordingly it directed for the
correction of the seniority list. As the respondent No.4 was senior to the petitioner
since from the very inception in service, the seniority list of the Superintending
Engineer was corrected and the respondent No.4 was directed to be placed over
and above the petitioner.
12. Counsel appearing for the respondent No.4 placed reliance on the
judgments passed by the Hon'ble Supreme Court in the cases of Union Public
Service Commission v. L.P. Tiwari and others : (2006)12 SCC 317 and Union of
India and another v. S.K. Goel and others : (2007) 14 SCC 641 and urged that the
scope of interference is limited as far as ACRs are concerned. He has prayed for
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dismissal of the petition.
13. Counsel appearing for respondent/State by filing a separate reply has
virtually supported the impugned action taken by the authorities. He has adopted
all the arguments advanced by the answering respondent No.4. He has also prayed
for dismissal of the petition.
14. Counsel appearing for respondent No.3-Public Service Commission
submits that there is no requirement of reply by the M.P. Public Service
Commission. The are unnessarily impleaded as a party to the pleadings. .
15. Heard the counsel for the parties and perused the record.
16. The sole question which comes for consideration before this Court is
whether the ACR recorded by the authorities can be downgraded without
assigning any reason. The admitted fact is that the respondent No.4 is senior to the
petitioner since the inception in the service. They both were appointed on
10.07.1992. The gradation lists of Assistant Engineer as well as Executive
Enginner which were published on 04.12.2013 30.03.2016 shows the respondent
No.4 to be senior over and above the petitioner. The DPC was held in the year
2012 for considering the cases of eligible candidates for ptomotion to the post of
Superintending Engineer. The DPC held on 17.08.2012/24.08.2012 analysing 5
years ACRs from 2007 to 2011 as Executive Engineers and the criteria adopted by
the DPC was merit cum seniority. The case of the respondent No.4 was considered
by DPC and he was found fit for promotion to the post of Superintending Engineer
and accordingly he was promoted. However, the case of the petitioner was kept in
a sealed cover owing to pendency of the departmental enquiry. After exoneration
of the petitioner from the departmental enquiry the sealed cover envelop was
opened and the DPC again considered the case of the petitioner and he was found
fit and promoted to the post of Superintendent Engineer vide order dated
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03.06.2014 with effect from 01.10.2012. The DPC found all 5 years ACRs to be
outstanding and grading as 'A+' and awarded 20 marks to the petitioner for the
same.
17. The gradation list for Superintending Engineer was published on
01.04.2015 and the petitioner was placed at serial No.46 while the respondent
No.4 was placed at serial No.50. At that moment the respondent No.4 came to
know his seniority has been affected and he has been placed below the petitioner.
He immediately represented the authorities by filing a representation dated
19.11.2014 asking for correction of his seniority list. The said representation was
considered by the authorities by holding a review DPC in the year 2021.
Therefore, the argument advanced by the petitioner's counsel that after a period of
seven years the petitioner has asked for correction of his ACR is not correct. The
downgrading of ACR of respondent No.4 was never communicated to him.
18. This is not a case wherein the ACR of the petitioner has been downgraded
suddenly. It is a case that when initially the competent authority while considering
the performance of the petitioner has granted 'A+' grade to the respondent No.4 for
the year 2007. His all the ACRs from 2007 to 2011 were outstanding. But the
DPC considered the case of the petitioner and downgraded the ACR of the year
2007 from 'A+' grade to 'A' without assigning any reason. The Circulars issued by
the government from time to time clearly stipulates that reasons are required to be
assigned by the authorities while downgrading the ACR. The minutes of the
meeting has been produced before this Court which shows that no reasons were
assigned by the DPC while down grading the ACR of the petitioner. He has placed
on record the ACRs of all the five years wherein it is clearly reflected that for the
year 2007 the authorities have granted him 'A+' grading which was subsequently
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downgraded to 'A' and no reasons are assigned by the DPC. The aforesaid fact
came to the knowledge of the petitioner when the gradation list of Superintending
Engineer was published and the petitioner was placed over and above of
respondent No.4. His seniority was adversely affected. The said representation
was considered by the authorities in a review DPC in the year 2021. The minutes
are placed on record along with the reply and the authorities while re-considering
the case of the petitioner has found that the DPC has not assigned any reasons
while downgrading the ACR from 'outstanding' to 'very good' i.e. from 'A+' to 'A'.
The circular issued by the government clearly speaks of assigning of reasons while
downgrading the ACR. It is not being done in the present case. The Circular dated
06.07.2002 as well as the amended Circular dated 29.09.2004 issued by the
General Administration Department clearly provides for assigning reasons while
downgrading the ACR were not followed by the authorities while downgrading
the ACR.
19. As the aforesaid aspect was not done in the present case, the downgrading
of ACR of the respondent No.4 for the year 2007 by the DPC held in the year
2012 is per se illegal. The mistake committed by the DPC has been rectified by
organizing a review DPC and considering the representation filed by the petitioner
for correction of his seniority. It is not a case wherein the petitioner's seniority or
his promotional aspects are being disturbed by the review DPC rather the
respondent's seniority list has been corrected by organizing a review DPC and by
granting him the correct ACR which was granted to him by the then assessing
authority in the year 2007 itself.
20. The law with respect to the interference in cases of ACR is settled by the
Hon'ble Supreme Court in the case of Union Public Service Commission v. L.P.
Tiwari and others : (2006) 12 SCC 317 has held as under -
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"27- In our opinion, the judgment of the Tribunal does not call
for any interference inasmuch as it followed the well settled
dictum of service jurisprudence that there will ordinarily be no
interference by the courts of law in the proceedings and
recommendations of the DPC unless such DPC meetings are
held illegally or in gross violation of the rules or there is mis-
grading of confidential reports. In the present case, the DPC had
made an overall assessment of all the relevant confidential
reports of the eligible officers who were being considered. The
DPC considered the remarks of the reviewing officers. There
was clear application of mind. Respondent No.1 did fulfill the
bench mark. Hence, the impugned direction of the High Court
ought not to have been issued as the same will have the impact
of causing utter confusion and chaos in the cadre of the Indian
Revenue Service, Customs and Central Excise Service.
28- It was also argued by the learned senior counsel appearing
for respondent No.1 that the entries for the period had an
element of adverse reflection and for that purpose the seniority
of respondent No.1 was downgraded and, therefore, the ACR
ought to have been communicated to respondent No.1. In our
opinion, the observations of the High Court are wholly
unjustified inasmuch as the post of Commissioner of Customs
and Central Excise is a post required to be filled up on selection
made strictly on the basis of merit. No judicial review of DPC
proceedings, which are ordinarily conducted in accordance with
the standing government instructions and Rules is warranted.
The norms and procedure for DPC are prescribed in O.M. dated
10.4.1989. It is thus seen that the decision taken by the
appellants has been as per the instructions issued on the subject
that only adverse entries and remarks are to be communicated
and there is no provision to communicate the downgrading of
ACR to a government employee. The decision of the Central
Government is in strict accordance with the prevailing rules and
government instructions. In the absence of any violation, the
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impugned order of the High Court while undertaking a judicial
review under Art. 226 of the Constitution of India, is wholly
unjustified. Since the matter of seniority has been well settled
and this Court in a plethora of cases has held that the
seniority/promotion granted on the strength of DPC selection
should not be unsettled after a lapse of time. Therefore, in the
facts and circumstances of the present case, where there is no
adverse remarks whatsoever against respondent No.1, the High
Court ought not to have interfered with and passed the
impugned direction. This apart, as per the instructions contained
in para 6.21 of DOPT Order No. 22011/5/86/Estt. D dated
19.4.1981, as amended, the DPC is not required to be guided
merely by the overall grading, if any, that may be recorded in
the CRs but to make its own assessment on the basis of the
entries in the CRs. The DPC enjoyed full discretion to devise its
method and procedure for objective assessment of suitability
and merit of the candidate being considered by it. Hence, the
impugned order of the High Court, in our opinion, is liable to be
set aside."
21. Furthermore, the Hon'ble Supreme Court in the case of Union of India and
another v. S. K. Goel and others : (2007) 14 SCC 641 opined as under -
"12- Although, on behalf of the respondents it has been
urged that there was no bar which precluded the Tribunal from
looking into the original ACRs of the respective candidates,
what we are required to consider is whether it was at all prudent
on the part of the Tribunal to have adopted such a procedure
which would amount to questioning the subjective satisfaction
of the Selection Committee in preparing the Select List.
13- Although, on behalf of the respondents it has been urged
that there was no bar which precluded the Tribunal from
looking into the original ACRs of the respective candidates,
what we are required to consider is whether it was at all prudent
on the part of the Tribunal to have adopted such a procedure
which would amount to questioning the subjective satisfaction
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of the Selection Committee in preparing the Select List."
22. If the aforesaid principles are applied to the case in hand it is clear that
there cannot be review of the findings recorded by the review DPC as there no
allegations of malefic action or violation of any statutory provisions. On the
contrary the circulars issued by GAD were not followed by the DPC while
downgrading the ACR of respondent No.4.
23. Under these circumstances, it can fairly be said that the authorities have
rightly considered the representation submitted by the petitioner and organized the
review DPC and has corrected the ACR of the respondent no.4 by restoring the
original ACR of 2007 and accordingly the seniority list is corrected by placing the
respondent No.4 over and above the petitioner. Therefore, no relief can be
extended to the petitioner.
23. The petition sans merit and is accordingly dismissed. No order as to costs.
(VISHAL MISHRA)
JUDGE
L.Raj
