siiT~EjibJfaTffi''hJmj"i"'i£JIli£S''67~HI5~1^iff''55~b2^lK IflkiSjJbg <fe2^1ffi ^U2i2 litsy. '^ifi <421^|.E b^. Ja^^s^K <siy.^j. ^ ^£ 'lVsS ^ -21K ^^ •*? ^lfiJll^feJ. Sl^.ljltfeyi^ EifcS^S <feBl^MA£ •£ 2StUt35j. JfelE4l22j.A lsy.1 *42Jl<6tV.K lb^l22J.A *Z l3iii^t<fcMU6 O^Ote &i^fej. l^.i ^fi e6^ •i ^&F ^Syita^ <4:2iat^lE te|.£ j24MJhfey.tK !!!^lfii& S £-^•Jl§ii! tiy.VJ. ^ fe±fcij. '^2 •4^ ^IS ^^csaS (^d^ 6661/*'***** ^tt^ feii k2^Affi IO.fiOtEJ 2J&&12 'tfl2^y.K ^iy.XlUi'S'tt fcllt^Jg iSfetja * HIGH COURT OF CHHATTISGARH : BiLASPUR Sinale Bench: Hon'bie Shri Manindra SVSohan Shrivastava. J. WRIT PETITSON (Si N0.3033/2005 R. C. Dubey Versus Principa! Secretary, Department of Agricuiture, State of iVladhya Pradesh, Bhopa! and Others Shri Rakesh Pandey, counsel for the petitioner. SSiri V. V. 8. Murthy, Deputy Advocate General for the State/respondenSs. ORAL ORDER (Passed on 10th ofAugust, 2010) Heard on admission. (2) This petition has been fiied by the petitioner aggrieved by his supercession and promotion of his junior respondent No.4 on the post of Upper Division CIerk (Assistant Grade I!). (3) Case of the petitioner is that petitioner was initially appointed as Lower Division Clerk on 31 "01 "1972. No departmenta! enquiry was ever initiated against the petitioner nor any adverse remark was ever communicated to him. 8 Gri of the petitioner is that vide order 03-07-1997 (Annexure A»2), No.4, a junior has been promoted whereas the-case of the has ignored. (4) Submission of iearned counsel for the petitioner is that the petitioner is senior to respondent No.4. Petitjoner is in service from 28-03-1972 whereas respondent No.4 is in service from 22-07-1974. Learned counse! for the petitioner further submltted that promotion is based on seniority-cum-merit, and s —-Z- therefore, the petitioner was entitled to be promoted over and above his junior, as there is no departmental enquiry nor any adverse remark has been communicated to the petitioner. (4) On the other hand, submission of learned counsel for the respondents is that vide order 22-12»1989 (Annexure R-1), petitioner was promoted to the post of Upper Division Clerk but the petitioner did not accept the promotion and continued to work as Lower Division Clerk. It is further submitted that vide order dated 28-06-1990, on certain allegations of misconduct, penaity of withhoJding of three increments was imposed on the petitioner and the promotion was not granted to the petitioner and his promotion order was cancelled vide order dated 11-02-1991(Annexure R-4). Further submission of Jearned counsel for the respondents is that the petitioner was again promoted vide order dated 01-03-1995 but the petitioner expressed his inability to join on the promoted post vide his ietter dated 13-03-1995, and therefore, his promotion order was cancelled vide order dated 24-04-1995. Further submission of learned counsel for the respondents is that D.P.C. again considered the of the petitioner in the year 1997 but the petitioner was not found fit for promotion and this was communicated to the petjtioner vide letter dated 24-07-1997 (Annexure R-8) pursuant to petitioner's representation dated 09-07-1997. Learned counse! for the respondents a!so contended that the petitioner has neither impieaded other clerks piaced at S.No.55 to 58 who have a!so been promoted nor has the petitioner challenged the promotion orders priorto1997. (5) I have considered riva! submissions made by tearned counsel for the and perused the record. ^ -2- (6) !n compliance of order dated 16-07-2010, respondents have piaced minutes of D.P.C. proceedings dated 25-04-1997, in which, the case of the petitioner for promotion was considered. One of the criteria for promotion was that out of iast five confidentiai reports, none should be adverse. The minutes record that in view of the A.C.R. of the petitioner for the year 1995-1996, recording ^Pl^l^fch cirrf ^ " petitioner was not found suitabie for promotjon. In the opinion of this Court, such a recording in the A.C.R. of the petitioner in the year 1995-1996 deariy constitute an adverse remark. Therefore, it was incumbent on the part of the respondents to have communicated the same to the petitioner and obtained his representation. Though, the petitioner has very cieariy in this petition that he has never been communicated adverse remark, respondents in their return have not come out with any pteading to deny the said averment. There is no materia! placed on record to show that adverse remark for the year 1995-1996 was ever communicated to the petitioner. It is thus estabiished that the aforesaid adverse remark was never conimunicated to the petitioner. Minutes of the D.P.C. placed before thls Court no manner of doubt that it was the aforesaid adverse remark of year 1995-1996. on which basis, the petitioner was not found fit for promotion and there was no other reason assigned by the D.P.C. for holding the petitioner unfit. The concerned A.C.R. of year 1995-1996 have also been piaced on record.in the said confidentiai report, grading ofthe petitioner has been shown as "^TTW-ST^T "and it has also been recorded "eliglble for promotion". However, In so far as obses-vation with regard to petitioner's integrity is concemed, it was recorded against the petitioner. Even the reviewing authority doubted the integrity of the petitioner and recorded that petitioner throws chaiienge to the senior officers. !n totaiity, remarks of year 1995-1996 contains severa! \ \ deieterious remark having adverse effect and impact on petitioner's !!i:':'H -i i:r 'I'1 .-•-^'1" -^ r'niiliiiiiiiuiB^ peiforniance and work which clearly constitute an adverse remark. Therefore, notwjthstanding, a fina! grading of "^TOTW-ST^T " in view of other adverse remarks on petitioner's work and integrity, reliability and behavjour with the higher authorities, the same ought to be communicated to the petitioner. Therefore, the action of the respondents in holding the petitioner unfit for promotion on the basis of aforesaid adverse remark which was not communicated to the petitioner is unfair, arbitraty and illegal. (7) Consequentiy, tfie decision of the respondents in holding the petitioner unfit for promotion in D.P.C. dated 25-04»1997is declared iliegai. Respondents shal! now consider the case of the petitioner for promotion to the post of Upper Division CEerk in accordance with the relevant rules and guidefines and in the iight of the observations of this Court. It is however made ciear that even if the petitioner is found fjt for promotion from earlier date, promotion already granted to respondent No.4 shal! not be disturbed. Moreover, in the event of petitioner found fit for promotion from earlier date, the petitioner sha!! be entitled to all consequentia! benefits of notional pay fixation, seniority except arrears of pay. (8) Petition is accordingly ailowed to the extent and in the manner indicated above. Sd/- Manindra MEohan Shrivastava Jude ' uman^