yivisi ^~,' 8V NOTIRCAT10N N0. B/O.G./05 AS SPfcCfREDI^ ^C^^DUlE r& B Of THE.COUR - FE^.-s AG'" -.S?r\ BEFORE THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT APPEAL N0. 5e$^» /2009 FARISING OUT OF W.P.fSl N0. 1328/20051 (< APPELLANT : RESPONDENTNO.l ^^t- t^^-y^'""" ^^.^c^r/v.'"" 'o^':" .,..-'"' ^ ,,<5^ ^- APPELLANT Respondent No.2 1. STATE OF M.P. (NOW C.G.) Through: i. The Secretary, General Administration Department, DKS Bhawan, Mantralaya, Raipur, Chhattisgarh ii. The Secretary, Department of Revenue, DKS Bhawan, Mantralaya, Raipur, Chhattisgarh 2. The Commissioner, Raipur Division, Raipur, Chhattisgarh VERSUS SAYED AKBAR ALI HASHMI, S/o. Sayed Mohammad Ali, aged about 56 years, Occupation: Service, presently posted as Additional Cotlector, Jashpur, District Jashpur, Chhattisgarh Om Prakash Gautam, Deputy Collector, Khargone, Drstrict Khargone, Madhya Pradesh WRIT APPEAL UNDER SECTION 2 (1) OF CHHATTISGARH HIGH COURT fAPPEAL TO DIVISION BENCH1 ACT,2006 RESPONDENT PETITIONER r:"^ ^. HIGH COURT OF CHHATTISGARH AT BILASPUR WritADpeal No. 326 of 2009 AppeIIant Respondent No. 1 Respondents State of M.P. (Now CG) & Others Versus Sayed Akbar Ali Hashmi & Another Writ Appeal under Section 2(\) of Chhattisaarh HicLh Court (Appeal to Division Bench) Act, 2006 DB: Hon'ble Shri Justice I.M. Quddusi & Hon'ble Shri Justice N. K. Agarwal. Present : Shri Vinay Harit, Deputy Advocate General with Shri Suryakant Mishra, Panel Lawyer for the State/appellants. Shri Ashish Surana, Advocate for respondent No.1. ORAL ORDER (Passsd on 28th day ofAugust, 2010) Per I.M. Quddusi, J. 1. This writ appeal has been filed against the impugned judgment and order dated 03.09.2009, passed by the learned Single Judge in Writ Petition (S) No. 1328 of 2005 allowing the writ petition holding that Departmental Promotion Committee (for short 'DPC') had not considered two years ACRs out of five years which were not placed before it by the State and rejected the candidature of the petitioner (respondent No. 1 herein), directed to reconsider the case of the respondent No. 1 afresh as on 2 April, 1994, when the DPC was held and pass appropriate orders in accordance with the procedure laid down by the DPC itself. ^'"'^ Ut 1 l:l€j^x^ i^.. v-^ '• !";^'pr^^ ^ Brief facts of the case are that, the respondent No. 1 in the instant writ appeal, joined the government service as Naib Tehsildar vide appointment order dated 11 May, 1977. Thereafter, he was promoted to the post of Tehsildar by order dated 3rd October, 1988. In the gradation list, the name of respondent No. 1 was shown at Sl. No. 230 and the respondent No. 2 has been placed at 81. No. 231 . The next promotion was to be considered on the post of Deputy Collector under the MP/CG State Administrative Service Classification Recruitment and Conditions of Service Rules, 1975 (for short 'the Rutes, 1975'). The DPC was constituted in the year 1993 to fill up 90 vacancies of Deputy Collectors in junior scale. The criteria for selection in the Rules, 1975, was merit and suitability in all respects with due regard to seniority. The DPC, which was held on 02.04.1994, considered the cases of promotion of 300 officers including that of respondents. Earlier the DPC was constituted on 15.09.1993 in which 20 officers were considered out of which 16 were given promotion and thereafter the DPC considered the remaining officers for the vacancies which were available. The DPC fixed certain criteria for promotion from Tehsildar to Deputy Collector. The following criteria are the relevant for the decision ofthe present case: i. Suitability will be decided on the basis of evaluation of last five years ACRs. Out of five years, the candidate should have "Ka" grade in -\ ^ -; -^y'% jy last two years and in last two years he should have at least "Kha" grade. ii. In case, excepting last three years, if a candidate has been graded "Ga" in that case "Ka+" or "Ka" should be there to compensate the same. On the basis of abovementioned criteria, if ACR of any particular year is not available, the ACR of the previous year will be considered. iii. The officer's integrity should be beyonddoubt. iv. If out of five years, three year's ACRs of an officer are not available, his matter shall remain stayed, and in case, if the ACR of year 92 is not available, the recommendation of the committee would be on finding suitable when his ACR of that year (31.03.92) should be at least of "Kha" grade. 6. The ACRs of respondent No. 1 were not considered, as the DPC mentioned that for the year 88-89 his ACR was not available. Though, for the year 90-91 it is mentioned as "Kha" and in year 1992 he was given "Ga" grade but we have found from the record that ACR of year 1989 was very well available on record, ACRs of previous years were also available on record but the same was not considered. Since the ACR for the year 1988-89 was not shown to be available and ACR of year 1992 was also not available, but, on record, it is reconstructed later on, we think it necessary to give details of the ACRs of respondent No. 1 for the relevant years as under: &-:€. !.:-;^ ^f H3 Period ending on 31st March, 1987 (86-87)- "Recovery of land revenue 86%, Taccabi 78%, case work 102% disposal. He did an outstanding job in family planning. Largely through his efforts, his block (Palari) came first in the district achieving 172% of its target. Grading-"A+ Outstanding. Sd/- Dhiraj Mathur Sub Divisional Officer Balodabazar ^f^TFfl^T 3riS|<fr|^ "^ <l^^ia I 'RtTTTcT f^rf^ 30.03.88 ?;roTfto Ricii^ d^icTI-i ^TcTTezrsT. wry ^f^TFT ^rq^ ^rf^, ^f6r I^TFT" Period ending on 31st March, 1990 (89-90)- "^TjRcr ycb^uiY ^ Pt^ei^i ^ ''HvRcT ^?pf ^rat1ro^ tl ^'»T°T^r f^r ^ ^rRr f^wFf <lft '^rat^r? 11 <^q6i^%^i<?i ^rfSr^t f i ^oqt' ^ pi<fd-i ^' ^f^r ^ t l 3TPT ^Fmr ^" irf^f ^II^IKUI 11 WT^ ^re^tTft ^rfSr^Tf^qY •^ ^'er ^ltll^"! '^RR ^ VS^ t 1 ^ft^ '<?WT ?cf f^ETpRHTT ^;ITra ^t ^4)ddl^<{<fr Pl^l^-1 f^TT OTq^ft <I^CM^ 3TTq^ iTR ^t ^4?d ^TT^ ^' $-14)1 ^<l<il-l ^T 1 ^t^t "^a" ?^PT ^ uiRft 11 (^ft.^T.ftw.) ST^f^TFft^T ^rrf^cM^, ^^erf ST^f^TPft^T 3rf^|chl^ ^t ^tq ^ tl64ia <^<yi<rc^ ^ivji-tfct^ii'ci sT^t^Tpft^T srfSrer^t T?^ 4)d<rc^ ^ ira^ ^ ^^+ia (sr.^^f^) <frf4ki^-i< ^pryr ^T'RPT 4.9.90" Periodending on 31st March, 1991 (90-91)- "^I)ft-3rTcOT" (A^. ^T?TcR) ^f^TPft^T ^rfSlchl^, ^^RT ^l^^ld R^4? ^f^ ^T^T. <t»c;l<rc^ ^ '?TSTRT ^Titf^T (sf.-?. tfti^) <frf4ki^vi< ^PT^ '^'WT 15.1.92" ••"," .,^ :J •^/ ^ill%»il^® ^ 8. The ACR for the year ending on 31st March, 89 (88-89) was not available, though it became available in the year 1994 when the DPC was already held. However, the details of the gradation for the year 88-89 of the respondent No. 1 is given as under: "^TIft-^^1se: ^ +,, (ufr.x^T. ftw) d^bloTl-1 ^T.f^.^T (f^rf^cT)^1^rf ct<{^i-i ^T^TRW ^.^T.f^r. 'wry ^TR-^I^^ f^Tf^ 18.07.94 ^' ^Rl^ct? ^rf^rtt ^ ^Tg^T ^l ^ft 3T^^ T^ 3TT$rwTft, 3T3?TTRr?r, ^R^i41, liRi^Hd ^Tf^rerft t nm ^r'^RTet^T sral^r ^f ~^^s ^pf f^TT 1 "^^ft- ^+" STjpT ^T^T ^T ^Rlcl (g^TRR) f^T ^ld^l, ^ Rwti ^' d^lcfl-1 f^raT^T^T c^ ^dM^<h1 ^Tf^mn ^ ^i^+ia ^ i (OT^.^ft.^TT^) ^iRici ^TE^T 19T^5T ?TRR. ^R, vjl-l^lRxl PI^IMI-I f^RPT" The ACR for the year ending on 31st March, 1992 (91-92)is available on record which is also quoted as under: "^uft-^T^15^" (^.Tft.R|cii^) g.^r.^TfSrarft ^TcTT ^l^ld ^^cTT '?QTPT—Tf'<gcTT f^-Tf^ 17.05.98 d^hicTl-i ^^Tpfi^T ^rrfSran^t ^t ^tg "^ ^R^RTI ^nf ^T WTO ^41"4)-1 ^^ft—^^^T ^iTxOT -^ ^^TT 3Tf^ ^^^<M ^~sn ^ ct?^<rc^ ^^ 6 9. Therefore, the person who was posted as Collector, Durg, as well as the Chief Executive Officer (reporting & approving authority respectively), where the respondent No. 1 was posted during the relevant period i.e. 91-92, have given their grading and that was down graded from "A+ " to "A", Therefore, without considering proper ACRs by the DPC, reviewing the case of respondent No. 1 was notproper. It is noticed that no record of DPC is available with the appellanVState at present and the same was also not produced before learned single judge. 10. Shri Vinay Harit, learned Deputy Advocate General for State/appellants has placedreliance upon the judgment of Supreme Court in case of Badrinath v. Government of Tamil Nadu and others1 in which the Supreme Court has observed in para 40 & 41 as under: "40. Unless there is a strong case for applying the Wednesbury doctrine orthere are mala fides, Courts and Tribunal cannot interfere with assessments made by Departmental Promotional Committees in regard to merit or fitness for promotion. But in rare cases, if the assessment is either proved to be mala fide or is found based on inadmissible or irrelevant or insignificant and trivial material and if an attitude of ignoring or not giving weight to the positive aspects of one's career is strongly displayed, or if the inferences drawn are such that no reasonable person can reach such conclusions, or if there is illegality attached to the decision,- then the powers of Judicial review AIR 2000 SC 3243 w -.rflff^ p ,J/ '^^ '' ^.^^^ 11 12. under Article 226 of the Constitution are not foreclosed." 41. While the Courts are to be extremely careful in exercising the power of judicial review in dealing with assessment made by Departmental Promotion Committees, the executive is also to bear in mind that, in exceptional cases, the assessment of merit made by them is liable to the scrutinized by Courts, within the narrow Wednesbury principles or on the ground of mala fides. The judicial power remains but its use is restricted to rare and exceptional situations. We are making these remarks so that Courts or tribunals may not by quoting this case as an easy precedent-interfere with assessment of merit in every case. Courts and Tribunals cannot sit as appellate authorities nor substitute their own views to the views of Departmental Promotion Committees. Undue interference by the Courts or Tribunals will result in paralyzing recommendations of Departmental Committees and promotions. The case on hand can be a precedent only in rare cases." In the instant case, we are ofthe opinion that this case is not of mala fides but it is case of "ignoring or not giving weight to positive aspects of one's career" as five years ACRs of respondent's No. 1 was not considered by the DPC. If the ACR of one year was not available, the DPC could have perused the ACRs according to the criteria laid down by it. Therefore, the grounds raised by the State are not good to interfere with the order passed by the learned single judge. Learned State counsel further relied upon the judgment of Supreme Court in case of Union of India & Others v. A.K. k ^ IJ ^ Narula2 in which the Supreme Court has observed in para 13 & 14 as under: J!AIR2007SC2296 13. The respondent had also securedthree 'very good' ratings for 1986-87, 1988-89 and 1989-90. For the other two years, that is for the years 1985-86 and 1987- 88, the respondent had secured the rating of 'good'. The respondent contended that his rating for 1987-88 was similar to that of R.S. Virk for 1988-89 as the accepting authority had downgraded his rating without assigning any reason, and therefore, DPC ought to have modulated his rating for 1987-88 as'very good'. On careful consideration, we find that respondent's case was different from that of R. S. Virk. The CR of respondent for theyear 1987-88 consisted oftwo parts. For the first half period, that is, from 1.4.1987 to 26.9.1987, the reporting authority had graded him as 'good' and reviewing authority had graded him as 'very good' and the accepting authority had graded him as 'good'. In regard to the second half, that is, 3.10.1987 to 31.3.1988, all the three authorities (reporting authority, reviewing authority and the accepting authority) had rated him as only 'good'. There was no question of reviewing or upgrading the rating of respondent for the second half of 1987-88, as all the three authorities had concurrently graded him as 'good'. Even in regard to the first half of that year (1.4.1987 to 26.9.1987), unlike the case of R.S. Virk where both the reporting authority and the reviewing authority had unanimously given the rating 'very good', the reporting authority had rated the respondent as 'good' and the reviewing authority had rated him as 'very good'; and in view of divergence between the reporting authority and reviewing authority, the accepting authority chose to rate him as 'good'. The DPC, on assessment, had rightly found that there was no case for revising the ^ < '-< .-'.; grading of respondent. The review DPC also found that the facts of respondent's case were different from that of R.S. Virk. The CRs demonstrated that R.S.Virk deserved upgrading and respondent did not. 14. The guidelines give a certain amount of play in the joints to the DPC by providing that it need not be guided by the overall grading recorded in the CRs, but may make its own assessment on the basis of the entries in the CRs. The DPC is required to make an overall assessment of the performance of each candidate separately, but by adopting the same standards, yardsticks and norms. It is only when the process of assessment is vitiated either on the ground of bias, malafides or arbitrariness, the selection calls for interference. Where the DPC has proceeded in a fair, impartiat and reasonable manner, by applying the same yardstick and norms to all candidates and there is no arbitrariness in the process of assessment by the DPC, the court will not interfere (vide State Bank of India v. Mohd. Mynuddin [1987 (4) SCC 486], Union Public Service Commission v. Hiranyalal Dev [1988 (2) SCC 242] and Badrinath v. Government of Tamil Nadu [2000 (8) SCC 395]). The review DPC reconsidered the matter and has given detailed reasons as to why the case of the respondent was not similar to that of R S Virk. If in those circumstances, the Review DPC decided not to change the grading of the respondent for the period 1.4.1987 to 31.3.1988 from 'good' to 'very good', the overall grading of the respondent continued to remain as 'good'. There was no question of moving him from the block of officers with the overall rating of 'good' to the block of officers with the overall rating of 'very good' and promoting him with reference to the DPC dated 13.6.1990. In the absence of any allegation of mala fide or bias against the DPC and in the absence of any arbitrariness in the manner in which assessment has been made, the High Court was not justified in \L \>,9 10 13. 14. directing that the benefit of upgrading be given to respondenf, as was done in the case of R. S. Virk. Re: Question (ii)" The above decision is not applicable to the facts and circumstances of the present case. Theonly fact before the learned single judge as well as before us is that while making criteria for considering five years ACRs by the DPC, the DPC had not considered five years ACRs of the respondent No. 1 and further, on the record, now all five years ACRs are available, and as such, the consideration of promotion of the respondent No. 1 as on 2nd April, 1994, requires on the basis of availability of ACRs of five years on record. Rather we had observed that erasing the adverse entries from the ACRs would not entitle a person to be treated in the grade of 'very good' or 'good' unless it is given to him on reviewing of ACRs or erasing the entries in the ACRs, but we are not emphasizing this ground because of the reason of non consideration of ACRs of the respondent No. 1 by the DPC was sufficient as directed by the learned single judge to reconsider the case of respondent No. 1 for promotion. In case of Dev Dutt v. Union of India & others3, the Supreme Court has inter alia held that even a "good" entry can be adverse in the context of eligibility for promotion. 2008 (8) SCC 725 <To 11 15. In view of abovementioned facts and circumstances of the case, we are satisfied with the ACRs of the respondent No. 1 which were produced before learned single judge aswell as before us. Considering the facts and circumstances of the case as discussed above, we found no illegality or manifest error in the impugned order passed by learned single judge which we affirm. 16. Thus, the writ appeal fails. The same deserves to be and is hereby dismissed. No orderasto costs. Sd/- I.M. Quddusi Judge Sd/- N.K.Agarwal Judge Sahu