l^ ^^ HIGH COURT OF CHHATTISGARH : BILASPUR Writ Petition (S) No. 1328 of 2005 Sayed Akbar Ali Hashmi Versus State of M.P. (now State of C.G.) & Others Post for pronouncement of the judgment on -3y day of September, 2009 Sd/- Satish K. Agnihotri Judge HIGH COURT OF CHHATTISGARH : BILASPUR Writ Petition (Sl No. 1328 of 2005 PETITIONER Sayed AkbarAli Hashmi, S/o Sayed Mohammad Ali, aged about 52 years, Occupation Deputy Collector, Baloda Bazar, Raipur (CG). Versus RESPONDENTS 1 State of M.P. (now State of C.G.), through (i)Secretary, General Administration Department, DKS Bhawan, Raipur (CG). (ii)The Secretary, Revenue Department, DKS Bhawan; Raipur (CG). 2 Commissioner, Raipur Division, Raipur (CG). 3 Shri Om Prakash Gautam, Deputy Collector, Khargone (MP). (Writ petition underArticle 226 ofthe Constitution of India) Single Bench : Hon'ble Shri Satish K. Agnihotri, J Present: Shri Ashish Surana, counsel for the petitioner. Shri Pankaj Shrivastava, Panel Lawyer for the State. Despite Service of notice, none appeared on behalf of the respondent No.3. 1. 2. JUDGMENT (Passed on this 2r2s( day of September, 2009) Heard learned counsel for the parties. Challenge in this petition is to the order dated 16th June, 1994 (Annexure - A/1) whereby the petitioner was not promoted to the post of Deputy Collector. The indisputable facts, in nutshell, as projected by the petitioner, are that the petitioner joined the service as Naib Tahsildar by appointment letter dated 11th May, 1977. Thereafter, he was i^ i^ promoted to the post of Tahsildar by order dated 3 October, 1988 and posted as Tahsildar, Dongargarh on the 21 October, 1988. In the gradation list of Tahsildars as on the 1 April, 1993 the name ofthe petitioner was shown at S.No.230 and the name of the respondent No.3 finds place at S.No.231. The next promotional post of the petitioner is Deputy Collector under the M.P./C.G. State Administrative Service Classification Recruitment and Conditions of Service Rules, 1975 (for short "the Rules, 1975"). In the year 1993, the selection committee was constituted to fill up the vacancies of about 90 Deputy Collectors in junior scale. The criteria for selection was merit and suitability in all respects with due regard to seniority. After selection, the impugned order of promotion was passed promoting 87 Officers as Deputy Collectors (junior scale). By the impugned order juniors to the petitioner were also promoted and the candidature of the petitioner was ignored. Thus, being aggrieved by the impugned promotion order, the petitioner filed an application on the 1 July, 1996 before the State Administrative Tribunal (for short "the SAT") and the same was numbered as O.A.No.1291 of 1996. On dissolution of the SAT, the original application was transferred to this Court and was re-numbered as W.P.(S) No.1328 of 2005. Shri Surana, learned counsel appearing for the petitioner, would submit that the petitioner was not promoted to the post of Deputy Collectorbecause his two years Annual Confidential Reports(for short "ACR") pertaining to the years 1988 and 1989 were not 8. made available before the selection committee. The confidential report for the year 1992 was also not produced before the Departmental Promotion Committee (for short "the DPC"). Thus, the entire selection process is vitiated. The petitioner was subsequently promoted to the post of Deputy Collector by order dated 29th May, 2003 (Annexure - A/10), but has been given notional seniority on the said post w.e.f. 25th September, 1998 vide document dated 12th September, 2006 (Additional Document No.2). Shri Surana would further submit that the claim of the petitioner has been ignored arbitrarily and in a casual manner without applying its mind. The ACR for the year 1992 was not adverse against the petitioner. The same was not considered by the DPC. Thus, the instant writ petition may be allowed and the petitioner may be granted promotion to the post of Deputy Collector w.e.f. 16th June, 1994 with all consequential benefits. On the other hand, Shri Shrivastava, learned Panel Lawyer appearing for the State, would submit that the DPC held its meeting on the 2 April, 1994. All the records were placed •before the DPC, which contained ACRs for the year 1992 also, wherein the petitioner was granted remark "Ga". The petitioner was granted remark "Kha" in the years 1990 and 1991. The DPC did not find the petitioner suitable for promotion and, as such, he was not recommended for promotion to the post of Deputy Cotlector. Shri Shrivastava would further submit that in the subsequent DPC held in the year 1998 another ACR of the petitioner for the 9. 10. 11. 12. year 1992 was produced, which contains remark "Ka". The Dealing Clerk namely' Trilochan Sharma was issued a notice with regard to change ofACRofthe petitioner for the year1992. The Principal Secretary in his communication dated 22 April, 1999 clarified that the remark "Ka" recorded in the year ACR of the petitioner for the year 1992 was incomplete, as the same was not approved by the Commissioner and, as such, the same was not accepted and the petitioner was declared by the DPC as unfit. It is further contended that the decision of the DPC is final and this Court may not review the decision of the DPC as an Appellate Court. Despite service of notice, none appeared on behalf of the respondent No.3, who was immediate junior to the petitioner. 1 have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto. The promotion to the State Administrative Service i.e. Deputy Collector is from the Tahsildars/Superintendents of Land Records and Superintendents of Commissioner's/Collector's office by the selection committee as prescribed under Schedule IV and under the provisions of Rule 15 of the Rules, 1975. The DPC in its meeting held on the 2 April, 1994 (Annexure - A/2) framed certain procedural guidelines, inter alia, firstly; the selection shall be on the basis of seniority having regard to the suitability of the candidates in all respects and; secondly, suitability shall be decided on the basis of ACRs for the last 5 years. The candidate should have "Ka" grade in the minimum 2 years ACRs and not less than "Kha" grade in the last 2 years 4;- ACRs. In any case it should not be a lowest grade (Ghatiya Sreni) in any year. Thirdly, excepting last 3 years, if a candidate has been graded "Ga" to ignore that lacuna he should have obtained one additional "Ka +" or "Ka" grade. Ifthe ACR of any year is not available out of the five years, in that case the ACR of immediate previoys year may be considered. 13. On perusal of the records produced by the State, in the ACR of the year 1989 the petitioner was awarded grade "Ka +", which was not considered by the DPC. In the year 1990 the petitioner was graded as "Kha", which was also not considered by the DPC. 14. On representation of the petitioner, the Chief Executive Officer, Zila Panchayat, Mandla along with his communication dated 11 May, 1998 (Annexure - A/10) addressed to the Director, Accounts & Pension, Government of Madhya Pradesh, Bhopal forwarded the ACR ofthe petitioner for the year 1992, stated that the petitioner has been graded as "Ka +" (Utkrisht). The Director, who was the Collector at that point of time, has graded the petitioner as "Ka" in place of "Ka +" i.e. Bahut Achha. It appears that though the ACRs for the years 1989 and 1990 wherein the petitioner was graded as "Ka + & Kha", respectively, were available in the records of the State, but the same were not produced before the DPC and, as such, the case ofthe petitioner was not considered and the process is vitiated. 15. The Hon'ble Supreme Court in Mansukhlal Vithaldas Chauhan vs. State of Gujarat1, obsen/ed as under: 1 (1997)78cc 622 <,^^^?^: 6 y ^ "25. This principle was reiterated in Tata Cellular vs. Union of India, in which it was, interalia, laid down that the Court does not sit as a Court of Appeal but merely reviews the manner in which the decision wasmade particularly as the Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted, it will be substituting its own decision which itself may be fallible. The Court pointed out that the duty of the Court is to confine itself to the question of legality. Its concern should be: 1. Whether a decision-making authority exceeded its powers? 2. committed an error of law; 3. committed a breach of the rules of natural justice; 4. reached a decision which no reasonable Tribunal would have reached;or 5. abused its powers." 16. The Hon'ble Supreme Court in M.V. Thimmaiah and others vs. Union Public Service Commission and Others , observed that "normally, the recommendations of the Selection Committee cannot be challenged except on the ground of mala fides or sehous violation ofthe statutory rules." 17. The DPC has already laid down the procedure for considering the suitability of the candidates, but in the case of the petitioner, the DPC has not followed its own procedure as laid down, as the requirement was to consider preceding 5 years ACRs and it appears that 2 years ACRs were not placed by the State before the DPC. Therefore, it is held that the rejection of the candidature of the petitioner for promotion to the post of Deputy Collector is vitiated. The DPC has not followed its own ' (2008)28cc 119 18. 19. Gowri 7 t procedure by not considering the preceding 5 years ACRs in case of the petitioner. In view of foregoing, the respondent-authorities are directed to consider the case of the petitioner afresh as on 2nd April, 1994 and pass appropriate orders in accordance with the procedure laid down by the DPC itself. In the result, the writ petition is allowed to the extent indicated above with consequential benefits flowing from this order. No order asto costs. Sd/- Satish K. Agnihotri Judge