APPLICATION UNDER SECTION 19 OF THE ADMINISTRATIOJiTRJBUNAL ACT.1985 W.P.(S) 1064/2005 O.A. No. 593 of 1995 Forjjseinthe Tribunal's office:- Date of filing or Date of receipt by post Registration No. REGISTRAR IN THE MADHYA PRADESH ADMINISTRATIVE TRIBUNAL. JABALPUR 1. APPLICANT NON-APPLICANT BETWEEN Hargovind Prasad Mehra s/o Late Shri Kanhaiya Lal Mehra Aged about 33 years, Fisheries Inspector- Pithora, District Raipur. VERSUS 1. StateofM.P. Through :-Secretary, Department of Fisheries, Bhopal. 2. Director of Fisheries, M.P. Bhopal 3. State of Chhattisgarh Through - Secretary, Department of Fisheries D.K.S. Bha\^tn, Raipur (C.G.). |^^5^s.y^d( ^r^\vb Y ^ HIGH COURT OF CHHATTISGARH, BILASPUR SINGLE BENCH : HON'BLE SHRI MANINDRA. MOHAN SHRIVASTAVA^J, Writ Petition (S) No. 1064/2005 PETITIONER Hargovind Prasad Mehra Versus RESPONDENTS State of Madhya Pradesh and others ORDER POST ON I^FEBRURARY, 2Q1Q Sd/- Manindra Mohan Shrivastava Jude ss^^ -Y2^ HIGH COURT OFCHHATTISGARH : BILASPUR SINGLE BENCH : HON'BLE SHRI MANINDRA MOHAN SHRIVASTAVA,J. Writ Petition (Sl No. 1064/2005 PETITIONER RESPONDENTS Hargovind Prasad Mehra Versus State of Madhya Pradesh and others Appearance: Shri N. K. Vyas, counsel for the petitioner. Shri Arvind Dubey, Panel Lawyer for the State. ORDER (Passed on (D .02.2010) 1. Factual Matrix of the present case as adumbrated in the petition and necessary for adjudication of controversy involved in the petition are that - the petitioner, a member of scheduled caste, upon successful completion of training from Fisheries Training Institute, Nawagaon, during the period 1984-1985 was appointed as Fisheries Inspector vide order dated 26.6.1985 (Annexure A-3) and his name appeared at serial No.l. He joined the post on 4th July, 1985, and thereafter claims to have worked with all sincerity and devotion to duty. An adverse entry in respect of the period 1986-87 was recorded in the ACR and then communicated to him vide Memo dated 1.6.1987 (Annex. A-5). Aggrieved by the same, representation was made by the petitioner on 23.7.1987 vide Annexure A-6, though petitioner did not receive any reply. Vide D.0. letter dated 23.2.1991 (Annexure A-8), and adverse entry for the year 1986-87 was communicated to the petitioner in ?^^^^^. ST^^ ffts, 1 ..^ ^' -2- response to which, the petitioner again submitted another representation on 31st March, 1991. This also failed to evoke response. In the gradation list of Fisheries Inspector showing position as on 1.4.1991, petitioner's name appeared at Sr. No.58 in the category of temporary Fisheries Inspector, whereas the name of 3rd respondent Chandrakant Bhishe, junior to the petitioner was shown at Sr. No.59 as it evident from Annexure A-ll. The petitioner was however shocked to find that in another gradation list (Annexure A~12) showing position of Fisheries Inspector as on 1.4.1992 while the petitioner continued to be placed in the categoiy of temporary employees at Sr. No.13, his junior Chandrakant Bhishe was placed in the list of permanent employee at Sr. No. 176 shown to have been confirmed along with others w.e.f. 1.8.1991. This meant that while hisjunior was confirmed, petitioner was not confirmed with effect from the said date. Thereafter vide order dated 5.10.1993 (Annexure A-l), his said junior was promoted as Fisheries Extension Officer thereby superseding the petitioner as he was not promoted. It has also been submitted that by the said order of promotion dated 5.10.1993, respondents promoted other inspectors also who were even not confirmed such as Ajay Shakti Bhatnagar (Sr. No.71), Sunil Kumar Dubey (Sr. No.72) and Ramesh Kumar Mishra (Sr. No.73), whose names found place at 8r. No. 10, 12 & 15 respectively in the gradation list of unconfirmed persons referred to Annexure A-12. 2. Petitioner aggrieved by this discrimmation in the matter of promotion, ventilated his grievance by his representation dated 13.7.1993 followed by another representationon 19.10.1993, both ofwhich failed to evoke response. Aggrieved by the said discrimination, the petitioner has '.-—I'%, im^ 'l ':-;^^R.;: F 't / -3- aK) taken recourse to legal remedy by filing instant petition stating that an adverse remark in confidential report could not be acted upon to deny promotional opportunity unless it is communicated. Though in the present case adverse remarks was communicated to the petitioner, his explanation offered against the same was never considered and decided as to whether report was justified, yet it was acted upon to his prejudice to deny him promotion on the basis of said adverse remarks. According to the petitioner it should have been communicated to him within a period of 3 months, whereas it was communicated after expiiy of the said period and, therefore, it having lost its efficacy, could not be acted upon without consideration of his representation and decision their upon. 3. Opposing the relief prayed for by the petitioner in the petition, respondents No.l & 2 filed their reply coming out with the case that in the Departmental Confirmation Committee, the criteria laid down was that ACR of 2 years i.e. 1988-89 & 1989-90 would be considered. The said Committee screened case of the petitioner as well as his junior Chandrakant Bhishe by taking into consideration only those two ACRs. In the said screening, though his junior was found to be fit for confirmation, pedtioner's works was not found satisfactory on the basis of remark "^T" recorded for 2 years' ACRs i.e. 1988-89 &, 1989-90. Respondents submitted that annual confidential report 1986-87 was not considered by the Departmental Confirmation Committee in its meeting on 30.7.1991 while assessing the suitability of the petitioner for the purposes of confirmation, though subsequently, the adverse remark against the petitioner was expunged as communicated to him vide letter dated 15.9.1999 (Annexure R-l). ACRs of 1988-89 & 1989- ^^-:. -4- ^ 90 alone were material basis for consideration in the matter of confirmation. Petitioner was found suitable for confirmation by the Departmental Confirmation Committee in its meeting dated 16.8.1999 and thereafter he was confirmed vide order dated 12.10.1999. 4. In view of the discloser made in the return that the adverse remark for the year 1986-87 had no role to play in the matter of consideration of petitioner's case for confirmation, the petitioner, by way of amendment in the petition, challenged the said action of downgrading from ^" to "TT'; grade stating that while ^" meant good,. "Tr'; meant only fair, and such step of downgrading could not have been taken without recording reasons, without communicating the same and giving the petitioner an opportunity to represent against such action of downgrading from ^" (good) to "TT;/ (fair). It was also submitted that having graded as fair, it was perverse to come to the conclusion that performance of work was unsatisfactory and unsuitable for confirmation. It has also been stated that such downgrading from good to fair i.e "^ to <'TT" is based on no material and without application of mind . There is no reason as to why grading was changed and downgraded from (<^ to "TT;\ During the pendency of the petition, an order was also issued by Dy. Director, Fisheries (Annexure A 10A) by which the adverse remarks recorded in the ACR for the year 1986-87 were also expunged. Petitioner also by way of amendment prayed for declaration that the rewriting of Confidential Report of the petitioner from ^" to '^ is illegal being recorded without opportunity of hearing and unfounded, and also prayed for its quashment. :vy^ •-:-., ^ -5- 5. In the rejoinder to the return filed earlier it was highlighted by the petitioner that from chart placed in the return, it is clear that respondents have not mentioned the grading of petitioner's junior relating to the period 1989-90. In the column meant for (<decision?? it has been mentioned that the said entry was not received till date of filing of return, from which it cannot be said that junior to the petitioner was more meritorious while considering the case for confirmation. It was also averred that respondents have failed to disclose basis for re-writing entry "TT" in place of ^" and according to the petitioner, the then Reporting Officer graded the petitioner as t^f) category which was duly approved by the Reviewing Officer. Further it has also been categorically averred that the said entry was finally forwarded to the Director, who accepted, but later on, in the year 1992 when one Arjun Singh took charge as Director, he wrote D.0, letter in the name of the then Reporting Officer to make entries "TT" in place of "^". 6. According to the petitioner, an entiy made in the record could not be changed without giving any reason and/or without giving any opportunity of hearing to the petitioner. The entry once made could not be changed after expiry of period of limitation on the basis of said D.0. letter. According to the petitioner, the successor director had no jurisdiction to write such D.0. letter for changing the grading , once it was accepted by the then Accepting Officer. It has also been stated that this entire exercise of issuance of D.0. letter and rewriting ofACR from ^;; to "TT;; was undertaken just a week before the date of meeting of D.P.C. which was scheduled to be held on 30th July, 1981 for considering cases of promotion to the post of Fisheries Extension -6- •^ Officer . This change of grading reached to the office of the Director on 17.7.1991 i.e. only few days before the date of convening D.P.C. meeting. According to the petitioner, this was clearly a malafide and arbitrary action to cause damage to the career ofthe petitioner. Further submission made in the rejoinder is that in the promotion order dated 5.10.1998, number of juniors including 3rd respondent Chandrakant Bhishe at Sr.No. 68, 69, 70, 71 73, 74, 75 and 87 though were not confirmed, yet they all were promoted and thus the petitioner was subjected to hostile discrimination resulting in violation ofArticle 14 & 16 ofthe Constitution oflndia. 7. Petitioner has also brought on record of his allocation to the State of Chhattisgarh upon reorganization of the State of Madhya Pradesh. As respondent No.3, petitioner's junior Chandrakant Bhishe was allocated to the State of Madhya Pradesh, Petitioner made an application for deleting the name of said junior respondent No.S-Chandrakant Bhishe which was allowed earlier vide order dated 7.7.2006. 8. Separate return has been filed by the State of Chhattisgarh (respondents No. 1 & 2), which was allowed to be impleaded as party by an order of this court dated 6.5.2008. Opposing the relief claimed by the petitioner, it has been stated that the ACRs of the petitioner were not made available with the Departmental Promotion Committee and hence he could not be considered. It has been averred that as the petitioner is claiming promotion and confirmation from 1.8.1991, it is for the State of Madhya Pradesh to consider and rectify the gradation list. -7- 9. Vide order dated 26.6.2008, this Court directed respondents to file an affidavit along with evidence to show as to whether Confidential Report of the petitioner for the year 1988-89 & 1989-90 has been communicated to the petitioner or not, if it is so, what steps have been taken thereafter. In compliance of the order of this Court, respondents have filed an affidavit on 18.7.2008m wherein it has been stated that as per record of ACR of the petitioner for the period 1.10.1988 to 31.3.1989, the Reporting Officer who is Assistant Director, Fisheries , Tikamgarh had reported and recommended grade - ^" to be awarded to the petitioner, however final Accepting Authority, Director Fisheries, Madhya Pradesh after going through the entire records awarded u^ to the petitioner. It was also stated that the petitioner was not granted ^) category for the said period. In the said affidavit, it has been further stated that in the year 1989-90 also, the Reporting Officer had reported and recommended class- ^" for the petitioner in his ACR, however, the Final Accepting Authority, Director, Fisheries Madhya Pradesh after going through the records awarded "~rJ>y category to the petitioner. It was further stated on oath that there is no mention that the petitioner was communicated or not regarding the award of "TT" category by the Final Accepting Authority, despite the fact that the Reporting Authority had recommended for '^;; category to the petitioner for both the years i.e. 1988-89 and 1989-90. It is stated that as category "^" is considered as Tair?, the Authorities might not have considered it as an adverse remark and would not have communicated the same to the petitioner. 10. Learned counsel for the petitioner submits that the action of the respondents in downgrading petitioner's ACR from "^" to "^" for the year 1988-89 & 1989-90 is without any basis, unfounded and not .^^ /:^ 1 ^ -8- "fe-^w •^^^^^ supported by any material or reasons as the petitioner was not afforded any opportunity of hearing and the same was not communicated to the petitioner and further that the petitioner was not afforded any opportunity to represent against such downgrading. He submits that his non-confirmation being based mainly on the said downgrading entry of "TT;; (fair) is therefore unfair. He further contends that while considering his case for confirmation, there was no adverse material so as to come to the conclusion that the performance of the petitioner was unsatisfactory . If grading "TT;; (fair) is taken as it is, it would only lead to conclusion that the work of petitioner is average/fair, but it could not form the basis to conclude that petitioner's work was unsatisfactory so as to deprive him of confirmation . If those entries recorded as fair have been treated as material so adverse as to reach to conclusion that performance was unsatisfactory, it constituted an adverse remark having deleterious effect and therefore it ought to have been communicated to the petitioner seeking his explanation and comments before aeting upon it. 11. He advances submission by adding that respondents have failed to place any material on record to show that such downgrading by the Accepting Authority was supported by any reason. On the contrary, according to him, this was all well designed by the then Officer to deprive him of his promotion because only few days before convening the meeting of Departmental Promotion Committee, a D.0. letter was written to change his grading which was otherwise finally accepted earlier by the then Director. He further submitted that because of this arbitrary, illegal and unfair action of downgrading and non- confirmation, petitioner was deprived of his promotion in time when /^%;^ •^%s:^ ^ .f •^. ^--^/.. ;^^-' -9- persons juniors to him were promoted. Learned counsel for the petitioner also reinforces submission regarding allegation of unfair treatment by stressing upon the fact that vide promotion order dated 5.10.1993 those juniors who had yet not been confirmed have been considered for promotion. 12. Learned counsel for the petitioner conclude his submission by relying upon the decision of Supreme Court in the case of Dev Dutt Vs. Union oflndia & Ors. (2008 AIR SCW 34861 . 13. On the other hand, learned counsel for the respondents submits that as the petitioner was not found suitable because of entry "7T" recorded in his ACRs for 1988-89 & 1989-90, he was actually confirmed subsequently when he was found suitable. It has also been submitted that as the adverse remark in his ACR for the year 1986-87 was not taken into consideration, there is no illegality or irregularity in considering the petitioner's case of confirmation in the Departmental Confirmation Committee convened on 30th July, 1991. Respondents have sought to justify their action of non-confirmation of the petitioner w.e.f. 1.8.1991 on the ground that upon consideration of ACR in respect of the petitioner for the year 1988-89 8& 1989-90, petitioner's performance was found to be unsatisfactory and therefore he was not found suitable for confirmation as he secured comparatively less grading as compared to his junior Chandrakant Bhishe (earlier impleaded as respondent No.3). Specific pleadings made by the petitioner initially in the writ petition and then in the rejoinder that he was initially graded ^" (good) which was subsequently reported as ^' (fair) was in respect of both the years i.e. 1988-89 & 1989-90 without -10- "^ •:- •^.^^' recording any reasons and without communicating the same, has not been disputed by the respondents. 14. Petitioner has made very specific pleadings to the effect that there was no material for the Director to downgrade from u^f to "TT". Categorical averments made in the rejoinder by the petitioner that for the year 1988-89, Reporting Authority awarded ^" which was also maintained by Reviewing Authority and finally accepted by the then Director, has not been disputed by the respondents. Similarly, specific averments that for the year 1989-90 also Reporting Authority had awarded ^" grading which was maintained by Reviewing Authority and finally accepted by the then Director, has also remained un-controverted. Respondents have not produced any record before this Court to establish thafc the downgrading from '^;; to "TT" was based on any substantial material. 15. Further, in the absence of any denial, it has to be held that the ACRs which were finally accepted as ^;; by the then Director for both years 1988-89 8& 1989-90 was changed on the basis of D.0. letter written by the subsequent Director. Petitioner's specific allegations that the D.0. letter was written to the Reporting Authority to change ^" to a^fy only few days before the Committee was to be convened on 30th July, 1991 and further that changed grading reached the office of Director on 17.7.1991 has remained uncontroverted. Respondents have failed to produce any material on record to disclose any reason for such downgrading. In the opinion of this Court such action of downgrading from ^" to "TT;; is absolutely illegal being devoid of any reason or material basis. Further in the absence of any denial of pleading that /',.: -11 - i^, ^" grading have already been accepted by the Final Accepting Authority i.e. the then Director, it is clear that the grading of the petitioner were changed by subsequent Director under D.0. letter only few days prior to the Departmental Confirmation Committee convened its meeting on 30th July, 1991. Respondents have failed to place any material to justify such action. 16. It is thus clear that the concerned authority have subjected the petitioner to grossly unfair treatment reHecting victimizing attitude. Moreover if UTT" (fair) grading for 2 years i.e. 1988-89 8& 1989-90 which alone were taken into consideration while assessing suitability for confirmation, were made basis to hold petitioner unsuitable for confirmation due to unsatisfactory performance, it definitely had deleterious effect thereby partaking the nature of an adverse remark. It was thus incumbent on the part of respondents to communicate the same to the petitioner and obtain his explanation before acting upon the same to hold the petitioner unsuitable for confirmation. It is rather strange and does not appeal to logic that though the petitioner has been graded fair i.e. nothing adverse, for 2 years 1988-89 & 1989-90 yet his performance has been found to be unsatisfactory to deny him confirmation. To say the least, this is most arbitrary, unreasonable and irrational. If the ACRs grading reflected a performance deserving fair grading, what was the material to conclude that the petitioner was otherwise unsuitable for confirmation has not been disclosed. The manner in which the respondents have considered the case of the petitioner for confirmation can only be termed as farcical, illogical being bereft of logic and reasoning. -12- 17. In the case of Dev Dutt (supra), the Supreme Court held as under :. "19. In our opinion, every entry in the A.C.R. of a public servant must be communlcated to hlin wlthln 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 ofthe 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. 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 servrice (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 %- ^\ j § I,^ -13- 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. 40. We further hold that when the entry is communicated to him the public servant should have a right to make a representation against the entry to the concerned authority, and the concerned authority must decide the representation in a fair manner and within a reasonable period. We also hold that the representation must be decided by an authority higher than the one who gave the entry, otherwise the likelihood is that the representation will be summarily rejected without adequate consideration as it would be an appeal from Caesar to Caesar. All this would be conducive to fairness and transparency in public administration, and would result in fairness to public servants. The State must be a model employer, and must act fairly towards its employees. Only then would good governance be possible. 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 ser^ice (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 ofArticle 14 ofthe Constitution/' 18. While considering the case of the petitioner before the Supreme Court it was observed as under: "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). ..^"<;-€ t? 1 1. s^ '^^^ -14- 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/9 19. Respondents have also not disputed that vide order of promotion dated 5.10.1993 (Ann. Al), Chandrakant Bhishe, petitioner's junior who was confirmed before the petitioner in the year 1991 was promoted. The petitioner has also averred that in the same order large number of junior persons to the petitioner at 8r. No.68, 69, 70, 71, 73, 74, 75 8& 87 were also promoted. There is no answer or