Madhya Pradesh High Court
Jagdish Pd. vs State Of M.P Thropugh Principal ... on 18 February, 2025
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 18th OF FEBRUARY, 2025
WRIT PETITION No. 13551 of 2013
JAGDISH PD.
Versus
STATE OF M.P THROUGH PRINCIPAL SECRETARY HIGHER
EDUCATION. AND ANR. AND OTHERS
Appearance:
Shri A.K.Sethi, learned Senior counsel with Shri Aayush Gupta,
learned counsel for the petitioner.
Shri Mukesh Parwal, learned counsel for the respondent nos.1 and 2.
ORDER
The present petition is filed under Article 226 of the Constitution of
India seeking a quashment of the order dated 29.04.2011 Annexure P/10 as
well as the order dated 09.05.2011 Annexure P/11 issued by respondent no.2
and also the order dated 08.02.2011 Annexure P/6 to be modified to the
extent that the petitioner be held promoted to the post of UDC w.e.f
03.07.1991 along with all consequential benefits including the monetary
benefits.
2. A prayer has been further made that the respondents be directed to
pay the cost of the present petition along with the cost of Rs.25,000/- as has
been directed by this court in its order dated 15.12.2010 in Conc
No.216/2010.
3. This petition has a checkered history and this is fourth visit of the
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petitioner to this Court.
4. The facts of the case in a nutshell is that the petitioner was
working as a Lower Division Clerk in the department. The petitioner was not
promoted on the post of UDC with the retrospective effect from 03.07.1991
which is the date of which his juniors were promoted on the recommendation
of DPC held on 27.08.1991. Since the petitioner was not promoted, he filed
OA No.51/1997 before the erstwhile State Administrative which was
transferred to the High Court and was registered as WP No.3731/2003,
which was decided on 10.01.2005 directing the respondents to constitute the
review DPC and consider the petitioner's case for promotion ignoring the un-
communicated adverse ACR entries.
5. The case of the petitioner for promotion was reviewed and it was
found that the ACRS between the period 1988, 1989, and 1990 were
available though the same were available at the date of the original DPC
dated 27.08.1991 therefore, the earlier ACRs of the petitioner were
considered and according to the respondent, since the ACR were adverse,
therefore the petitioner was not found fit for promotion. The petitioner again
filed WP No.5815/2007 (s) which was allowed by order dated 24.03.2009
and the decision on the review DPC was quashed by this Court holding that
if certain records of the ACRs were not available, the respondents were to
reconsider the record and if there is adverse ACRs then it must have been
shown to have been communicated to the petitioner and if it has been
communicated to the petitioner, then only the adverse ACRs would be taken
into consideration and not otherwise. The respondents were again directed to
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reconstitute a review DPC for consideration of the claim of the petitioner for
promotion. It was also held that if the petitioner is found entitled for
promotion from the date when his juniors were promoted, then all
consequential benefits shall follow.
6. The respondents filed MCC No.507/2009 for extension of time,
which was allowed by this court vide order dated 10.12.2009. Since the
aforesaid order was not compiled with the petitioner filed Conc.
No.216/2010 which was disposed of by this Court by order dated 15.10.2010
and three months time was granted to comply with the order passed by this
court.
7. The petitioner was already promoted on the post of Assistant
Grade II with retrospective effect from 03.07.1991 by order dated
08.02.2011. After passing the order in M.C.C No.109/2011, respondent no.2
stayed the order dated 08.02.2011 by issuing an order dated 11.03.2011 and
issued an order dated 01.04.2011, which was duly replied by the petitioner.
Thus, the respondents have suppressed the aforesaid order before this court
in M.C.C No.109/2011. After passing the order on 08.02.2011 in MCC
No.109/2011, the respondent no.2 stayed the order dated 08.02.2011 by
issuing the order dated 11.03.2011 and thereafter issued a letter dated
01.04.2011 to which the petitioner immediately replied and objected on
08.04.2011. Respondent no.2 passed by impugned order dated 29.04.2011
rejected the representation and by order dated 09.5.2011 has cancelled the
order dated 08.02.2012 by order dated 29.05.2011 and the order dated
09.05.2011. The petitioner also filed Review Petition No.243/2011 recalling
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of the order dated 18.02.2011 passed in MCC No.109/2011. The said
application was dismissed on the ground that the relief was granted only for
extension of time. On the aforesaid grounds, the present petition is filed.
8. The respondents have filed the reply and stated that the
respondents have passed the impugned order in compliance to the orders
passed by this Court. It is stated in para no.3 of the reply that the petitioner
being eligible for promotion was considered in the review DPC dated
09.05.2011. However, because of the adverse ACR of the years 1988, 1989,
and 1990, he was not found fit. It is further stated in para no.4 that the
excommunicated ACRs were reconstructed. The respondents have relied on
the observation made by this Court in its order dated 24.03.2009 in WP
No.5815/2007 (s).
9. Learned counsel for the petitioner vehemently argued that the
aforesaid impugned orders are illegal, arbitrary and contrary to the directions
passed by this Court. While filing MCC No.101/2011 decided on
18.02.2011, the respondents have suppressed the order dated 08.02.2011 that
the petitioner was already granted promotion on the post of Assistant Grade
II with retrospective effect 03.07.1991.
10. Learned counsel for the respondent/state supported the impugned
orders and held that in the light of the observation made in WP
No.5815/2007 (s), the ACRs which were not available of years 1988, 1989,
and 1990 were reconstructed and thereafter they were communicated and the
petitioner was not found fit.
11. I have heard learned counsel for the parties.
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12. The sole question raised for consideration is that whether on the
basis of ACRs which were already directed to be ignored vide order dated
10.01.2005 in WP No.3731/2003 the same could have been made basis for
rejecting the claim of the petitioner for promotion from the date of promotion
of juniors on the post of UDC w.e.f 03.07.1991 and whether he could have
been denied the salary for the said period on the principle of "no work no
pay"?
13. In order to appreciate the same, it is relevant to reiterate that the
juniors to the petitioner were promoted on the post of UDC w.e.f
03.07.1991. He filed WP No.3731/2003 (OA No.51/1997), which was
disposed of with the following directions:-
"3. Learned counsel for the petitioner submitted that on
03.07.1991 when junior to the petitioner was promoted, adverse
CR entries were not communicated to the petitioner and hence,
this adverse CR entires cannot be taken into account by the
respondents. Learned counsel for the petitioner further relied on
the decision of Division Bench reported in 1991 (II) MP Weekly
Notes, Shivanand Prasad Vs. Union of India.
4. On the basis of the above facts, the petition of the petitioner is
allowed. Respondents are directed to constitute a review DPC and
consider the case of the petitioner for promotion at par with
respondent no.5 ignoring un-communicated adverse CR entries
and pass appropriate orders.
5. With the aforesaid directions, the petition of the petitioner is
disposed of with no order as to costs."
14. A review DPC was convinced on 27.08.1991 and the petitioner
was not found fit on the basis of un-communicated ACRs of 1988, 1989, and
1990. The same was challenged in WP No.5815/2007. The said petition was
allowed and disposed of by order dated 15.12.2010. The relevant part of the
order is as under as follows:-
"Keeping in view the facts and circumstances of the case, it is
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directed that if certain record is not available with the departmental
authorities, then it would be open to reconstruct the said record, in
accordance with law by inviting objections against such
reconstructions. If any such record is reconstructed, and the
aforesaid adverse ACRs, if any, are shown to be communicated to
the petitioner, only then the said adverse ACRs would be taken
into consideration and not otherwise."
15. Thereafter, the Conc. Petition No.216/2010 was filed alleging
non-compliance of the order, which was disposed of with the following
observations:-
"From perusal of the record, it appears that vide letter dated
27.11.2009 the petitioner was communicated that adverse entries
are against the petitioner in ACRs of the year 1988, 1989 and
1990 but wheat are adverse entires are not on record.
In the facts and circumstances of the case, since the order dated
7.1.2010 is not at all in compliance of the order passed by this
court, therefore, order dated 07-01-2010 and letter dated 16-12-
2009 whereby the compliance is alleged to have been made, are
quashed with a short direction that the orders passed by this Court
from time to time be complied in works and spirit positively under
intimation to be registry of this Court by passing speaking order
within a period of two months from the date of receipt of the copy
of this order failing which the petitioner can approach this court by
reviving contempt petition, in that case the respondents shall be
liable personally for the payment of cost of litigation in all the
cases which is quantified at Rs.25,000/-."
16. The respondents passed the order dated 08.2.2011 in compliance
to the court order and the petitioner was granted promotion on the post of
Assistant Grade II w.e.f 03.07.1991 modifying the date 31.12.1998.
However, it was held that the petitioner was not entitled for the salary of the
said period on the principle of "No Work No Pay".
17. MCC No.109/2011 was filed for extension of time suppressing
the order dated 08.02.2011 which was disposed of by granting them time to
comply with the order.
18. After disposal of the said MCC, the respondent stayed the order
dated 08.02.2011 by order dated 11.03.2011 by misinterpreting the
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observation at page 22 stating that they were directed to reconstruct the
record and uncommunicated ACRs were required to be communicated and
then only the decision was to be taken. It would be relevant to reproduce the
aforesaid observation again:-
"Keeping in view the facts and circumstances of the case, it is
directed that if certain record is not available with the departmental
authorities, then it would be open to reconstruct the said record, in
accordance with law by inviting objections against such
reconstructions. If any such record is reconstructed, and the
aforesaid adverse ACRs, if any, are shown to be communicated to
the petitioner, only then the said adverse ACRs would be taken
into consideration and not otherwise."
19. From the aforesaid observation, it is clear that the court had
directed that keeping in view the contention of learned counsel for the state
that certain records are not available to the departmental authorities and the
court observed that the record would be reconstructed in accordance with law
by inviting objection against such reconstruction and if any such record is
reconstructed and the adverse ACRs, "if any", are shown to be
communicated to the petitioner, "only then" the said adverse ACRs would be
taken into consideration and "not otherwise".
20. Thus, it is clear that on reconstruction of the record, if it is found
that adverse ACRS were communicated to the petitioner then only the same
was to be taken into consideration. The respondents misinterpreted the said
order that they have to reconstruct the ACRs and then to communicate the
same to the petitioner and to consider his representation on the said
misinterpretation, the representation against ACRS were rejected. This was
neither the observation nor the intention of the court. The court has already
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passed the order in WP No.3731/2023 directing the respondents to constitute
the review DPC for promotion at par with the junior respondent no.5
ignoring the uncommunicated adverse ACRs entries and to pass the
appropriate orders.
21. Thus, in the present case, admittedly the adverse ACRs of years
1988, 1989, and 1990 prior to reconstruction of the record were never
communicated to the petitioner. It is settled law that uncommunicated
adverse ACRS cannot be taken into consideration for promotion.
22. The law relating to consideration of uncommunicated ACRs for
promotion or upgradation is no longer res integra. In the case of Gurdial
Singh Fijji Vs. State of Punjab & Ors (1979) 2 SCC 368, the court held that
the non-inclusion of a government servant in the select list on account of
adverse entry which was not communicated and the opportunity was not
afforded to submit representation, cannot be made basis for denial of the
promotion. In the case of Kaluram Patidar Vs. State of MP & Ors WP
No.11064/2010 decided on 25.8.2011 , this court relying on the judgment
passed by the Apex Court in the case of Abhijit Ghosh Dastidar Vs. Union
of India (2009) 6 SCC 146 came to the conclusion that the ACRs which have
been resulted in denial of the selection grade cannot be considered to be a
ground for denying the claim to an employee. In the case of Dev Dutt Vs.
Union of India & Ors. (2008) 8 SCC 725, it has been held that non-
communication of entries in the ACRS of a public servant has civil
consequences because it may affect his chance for promotion or get other
benefits. Such non-communication of adverse ACRS would be arbitrary
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and violation of Article 14 of the Constitution of India. The same has been
followed by a coordinate Bench in the case of Rajendra Kumar Verma vs.
State of M.P. 2017(1) MPLJ 391 . The division bench of this court in the
c a s e Higher Education Department Vs. Dr.(Smt) Kavita Bundela WA
No.421/2017 decided on 23.10.2017 has taken a similar view.
23. So far the denial of the monetary benefits on the principle of No
Work No Pay is also not sustainable. From the facts, it is clear that the
petitioner's right to promotion was denied erroneously.
24. The respondents have not shown any fault of the employee for
non consideration of his case for promotion alongwith his juniors. Thus, the
non-consideration for promotion of the petitioner at the relevant time is
solely attributable to the department and there is no fault on the part of the
employee therefore, the employee cannot be denied the consequential
benefits after promotion. In the case of Union of India Vs. K.V.Jankiraman,
AIR 1991 SC 2010, the Apex Court held that where the employee was not at
fault and the department deprived him to perform the promotional post, the
principle of "No work no pay" would not be applicable. The said principle
has been followed by the Apex Court in the subsequent judgment in the case
of State of Kerala Vs. E.K.Bhaskaran Pillai (2007) 6 SCC 524, followed by
the Division Bench of this court in the case of C.B.Tiwari Vs. State of M.P.
& others, 2015(2) MPHT 132. A similar view has been taken by Division
Bench at the Principal Seat at Jabalpur in WA No.1287/2017 (State of MP
and Ors Vs. Jham Singh Pandre) decided on 02.01.2018.
25. In view of the aforesaid facts and law enunciated, the present
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petition is allowed. The impugned orders dated 29.04.2011 Annexure P/10,
09.05.2011 Annexure P/11 issued by respondent no.2 are quashed and the
order dated 08.02.2011 is modified to the extent that the petitioner shall be
treated to be promoted on the post of UDC w.e.f 03.07.1991 along with all
consequential benefits. The revised PPO shall be issued accordingly.
(VIJAY KUMAR SHUKLA)
JUDGE
Sourabh
