;i HIGH COURT OF CHHATTISGARH AT BILASPUR Djvision Bench: Hon'ble Shri Dhirendra Mishra^ Hon'ble Shri R.N. Chandrakar. JJ Appellant Petitioner No.2 Respondents: Respondents •^•?- WritADpealNo. 538 of 2010 Santosh Kumar Chandrakar Versus State of MP (Now Chhattisgarh) and others JUDGMENT FOR CONSIDERATION Sd/- Dhirendra Mishra Judge HON'BLE SHRI R.N. CHANDRAKAR, J ^ Sd/- R.N. Chandrakar Judge rf^l POSTFORJUDGMENTON '^ FEBRUARY. 2011 Sd/- J U DG E 1 */ .2.2011 IIB 8W 3N * HIGH COURT OF CHHATTISGARH AT BILASPUR Division Bench: Hon'ble Shri Dhirendra Mishra, & Hon'ble Shri R.N. Chandrakar, JJ Appellant Petitioner No.2 Respondents: Respondents WritADpeal No. 538 of 2010 Santosh Kumar Chandrakar, S/o Kheloo Ram Chandrakar, aged about 46 years, Patwari, Sub Divisional Office, District Mahasamund (CG) Versus 1. State of MP (Now Chhattisgarh) Through : the Secretary, Department of Revenue, Mantralaya, Dau Kalyan Singh Bhawan, Shastri Chowk, Raipur (CG) 2. Commissioner, Land Records and Settlement, Madhya Pradesh, Bhopal (Now Chhattisgarh), Raipur, (CG) 3. Roopa Nand Pradhan, S/o Brahma Nand Pradhan, Roll No.3024, Marks obtained 69/100, Nayab Tahsildar- Rajnandgaon (MP) (Now C.G.) (Since died) 4. Manharanlal Janghel, S/oAdheen Ram, Roll No.2704, Marks obtained 66/100, Nayab Tahsildar, Rajnandgaon (MP) (NbwC.G.) Presently posted as Nayab Tahsildar, Patan, Distt. Durg (CG) 5. Shankar Lal Sinha, S/o Mohan Lal Sinha, Patwari, Sub DivisionalOffice, Dist. Mahasamund (CG) Present: "Shri Anup Majumdaj^ counsel for the appellant. Shri MPS Bhatia| Govt. Advocatefor the State/respondents No.1 &2. JUDGMENT (Delivered on 15WFebruary, 2011) Per Dhirendra Mishra. J. The appellant and respondent No.5 filed original application before the State Administrative Tribunal and prayed for quashing of order of Annexure A/3 in respect of respondents No. 3& 4 since they are not qualified .to be appointed/promoted as Nayab Tahsildar, and further direction to promote them as Nayab Tahsildar w.e.f. 5 August, ^- -s<;... ~S... I'i^ ^ 1997. Learned Single Judge while allowing the writ petition of respondent No.5, dismissed the petition of the appellant herein by the impugned order. 2. Shri Majumdar, learned counsel for the appellant, vehemently argued that out of 100 marks in the written examination, the appellant obtained 71 marks, whereas respondents No.3 & 4 obtained only 69 and 66 marks respectively. However, by manipulating ACRs, they got selected on the post of Nayab Tahsildar and the appellant's case for promotion was not considered. The appellant was never communicated regarding any adverse remark or lowering of his grade since the date of his appointment. He learnt that in the year 1990, he was rated as Grade-B, however, from 1991 onwards till 1993, he was graded "C" and no communication was made to him regarding downgrading. In service rules applicable to the appellant, acfverse remark has not been defined. However, the State has issued circulars from time to time, wherein it has been provided that adverse remark has to be communicated to the employee within three months of writing of the same in the character roll. Where adverse remark is not communicated, it becomes nonest for all intent and purposes. Relying upon the decision ofthe Supreme Court in the matter of Dev Dutt Vs. Union of India reported in (2008) 8 SCC 725, itwas argued that non-communication of downgrading in character roll of the appellant has adversely affected the promotional opportunity of the appellant, and he ought to have been afforded an opportunity of representing against the adverse entries made in his ACRs. a ";;•; V. •y •;- '^ 3. On the other hand, Shri Bhatia, learned Govt. Advocate appearing for the State, argued that the entire argument advanced by the petitioner has been dealt with by the learhed Single Judge in the impugned order. The law laid down by the Supreme Court in Dev Dutt's case has no application in the facts of the present case, as observed by the learned Single Judge in para 11 of the impugned order. 4. Heard learned counsel for the parties and perused the impugned order. 5. Indisputably, the appellant obtained 71 marks in the written examination. The procedure followed by the Departmental Promotion Committee, by prescribing maximum marks 100 on evaluation of ACRs of five preceding years and 100 marks in the written examination, is strictly in accordance with the retevant circulars and the rules applicable in the case of appellant. The appellant has challenged the evaluation process based on ACRs on the ground that he was rated Grade-C for the year 1991, 92 and 93, whereas he was graded "B" in the year 1990, and in these circumstances, the respondents ought to have communicated the appellant when he was downgraded in the above years to Grade-C and afforded him an opportunity to represent. We are unable to accept the above reasoning as five years period for consideration of ACRs, in the present case, commenced from 1991 to 1995. The learned Single Judge, after requisitioning ACRs for the preceding five years of the appellant, has observed that the petitioner was graded "good" Grade-C for the years 1991, 1992, 1993 and thereafter, he was upgraded to Grade-B in the year 1994 and 3s Biii MB ilj• then to Grade-A for the year 1995 and thus, the ratio of law laid down in Dev Dutt's case is not applicable in the facts of the present case. From perusal of the pleadings of the respective parties, including the application for amendment in the writ petition dated 4 August, 2010, and the impugned order, it is observed that there is no pleading that the petitioner was downgraded to Grade-C in the year 1991 and therefore, in our considered opinion, the learned Single Judge has rightly held that the ratio of law laid down by the Supreme Court in Dev Dutt's case is not applicable in the facts of the present case as it was not a case of downgrading, but upgrading of ACRs of the petitioner. 6. On careful consideration of the arguments advanced by learned counsel for the appellant and on close scrutiny of the impugned order, we are of the opinion that the appellant has not been able to establish any good reason for interfering with the impugned order. There is no substance in this appeal; the same deserves to be and is, accordingly, dismissed. Sd7- DhirendraMishra Judge Sd/- R.N. Chandratar Judge