^ ^p^ ]^$/ OS- e*^//-?0^/^ •^ sr^/^^; BEFORE HON'ELE STATE Aa<INISTRATI".7E TRIBUNM, : AT JABALPUR (M.P.) O.A. No..^_<56-:52il997 Appllcants Shankarlal Sinha and another ..'-/ Vs- Non-applicants: • State of M.P. and others. \ DETAILS OF APPLICATION (U/S 19 of theAdminlstrative Tribunals Actt,X985). l.Partlculars of the applicants: (1) Ajopllca.nt No. 1: i/ISIame: Shankarlal Sinba, il/Fattier's naine; Mobanlal Sinha, iii/Bate of birt h; 12.02.1967 iv/Qualifications: B.A.,M.A. (Pol.Sc.) v/ Deslgnation: ' Patwari vi/Office-address; Patwari Sub-Divis.i.onal Office, Mahasamund, Dj.stt-RaipurCM.P.) (2 jAppl-icant No.2i i/Name: Santosh Kumar Chandrakar ii/Father s names Kbeloo Ram Chandrakar iil/Bt.of bifth; 1.8.1964 i&/Quallfication: B.A./M.A.(Sociology) i. .v/Designation; Patwarl vi/Office address; Sub-Divisional Offiee:;, Mahasainund,Disft-Raipur(M«P.) 2.Particalars o£ ttie respondents s (l)State o£ Hadbya Pradesh, ThrOugti-Seeretary, Revenae Department,iGovfe.of MP< MantFalaya,BBopaI(8tP,) !"«2- ' g-^ L^ ^ £^ -2- . _ ( 2 )Cocnmissj.oner, Iiand-Records and Settlement, Madhya Pfadesb, BbopaKM.P.) (3)Roopa Nand Pradhan, s/o Braiima Nand pradhan, Roll No.3024 -Marks obtained 69/100 Nayato Tahsildar, Rajnandgaoa(M «P.) (4)Manharanlal s/o A<3heen Rain Roll N0.2704 Marks obtained 66/100 Hayab-Tahsl.ldar, Rajnandgaon(M.P..) S.Particulars o£ the order agaiBst wbich appli^eation is made: . ' 'fetl HIGH COURT OF CHHAmSGARHJBILASPUR SINGLEBENCH : H^N^BLE^SHRIMANINDRAMOHAILSHRIVASTAVAtfJ. PETITIONERS RESPONDENTS Writ Petition (S) No. 1635/2005 Shankarlal Sinha 85 another Versys State of Madhya Pradesh and others O R D ER ^ POSTL ON i^ OCTOBER. 2010 Sd/- Manindra Mohan Shrivasteva Judge | 1 ^ HIGH COURTOF CH^ATTISGARH^BILASPUR SINfflLE^BENCIL: HON'BLESHRI MANINDRA MOHAN SHMVASTAVA.J. WritPetition (Sl No.l63S/2005 PETITIONERS Shankarlal Sinha & another RESPONDENTS Versus State of Madhya Pi-adesh and others Appearance: Shri Anup Majumdar, counsel for the petitioners. Shri V.V.S. Murhty, Dy. Adyocate General for the State. ORDBR (Passed on ^ . 10.2010) 1. By this petition, the petitioners have prayed for quashing of promotion of respondent No. 3 Ss 4 vide promotion order dated 5.8.1997 (Annexure A-3). Petitioners have further prayed for issuance of direction to respondents No. 1 65 2 for grant of promotion to the petidoners on the post of Nayab Tahsildar w.e.f. 5.8.1997. 2. Case of the petitioners, who are patwaris, is that the respondents issued notification on 17.7.1995 (Annexure A-l) initiating process for appointment ofPatwaris and Revenue Inspectors on the post ofNayab Tahsildar through limited competitive examination under the Madhya Pradesh Junior Administrative Service Recruitment Rules, 1980 (for brevity hereinafter referred to as "the Recruitment Rules of 1980'} against IQj^er cent of the posts of Nayab Tahsildar. The petitioners also appeared in the written examination. Vide Circular dated 13th August, 1996 (Annexure A-2), the Commissioner, Land Records 85 Settlement, circulated the list ofmarks obtained by the candidates in the written examination by declaring that those who have obtained 50 -2- y percent or more marks will be treated as having successfully passed the written examination and upon assessment of Annual Confidential Reports (ACRs) final selection shall be made. The petitioner No.l obtained 72 inarks out of 100 marks, whereas petitioner No.2 obtained 71 out of 100 marks in the written examination. According to the petitioners, respondent No.3 obtained 69 marks, whereas respondent No.4 obtaiffed-nnly 66 marks in the written examination, yet, by manipulating the ACRs of respondents No. 3 & 4, they have been selected and vide impugned order dated 5.8.1997, respondents No. 3 8s 4 have been appointed as Nayab Tahsildar. Leamed counsel for the petitioners submitted that the petitioner No.l was never communicated any adverse entiy in his ACRs and in all relevant ACRs, he was graded excellent categoiy. He furfher submits that from the retuni of respondents, it is revealed that the petitioner No.2 was also not cominunicated any adverse remark. Learned counsel for the petitioners further contended that even according to respondents, the selection was to be made on the basis of the marks obtained in written examination and marks awarded upon evaluation of ACRs of preceding five years, therefore, both the petitioners were entitled to be selected and appointed. Other submission of leamed counsel for the petitioners is that from the return, it has been disclosed that the last candidate in the general categoiy secured 165 marks, whereas the last candidate selected in the merit list in S.C. category secured 144 marks- and the last candidate'selected in O.B.C. categoiy seciu-ed 158 marks, therefore, it is clear that even though the petitioner secured higher marks in written examination, because pf arbitrary evaluadon of their ACRs of preceding five years, they were illegally deprived of selection and appointnient to the post of Nayab Tahsildar. -3- ^ >' In support of their submissions, learned counsel for the petitioners placed reliance on the decision of Supreme Court in the cases of Dev Dutt Vs. Union of India & Ors.1, Union of India and others Vs. E.G. Nambudirx2 & U.P^ Jal Nieam ^B Qrs. Vs^ Prabhat Chandra Jain & Ors.3. 3. On the other hand, learned counsel for the respondents submits that e" -- the merit list was to be prepared on the basis of marks obtained in the written examinadon and upon evaluation of ACRs of the preceding five years. He submits that the petitioners could not be appointed as they secured less marks than respondents No. 3 & 4 in the final assessment based on marks obtained in written examination and evaluation of ACRs of preceding five years. 4. I have considered the rival submissions made by leamed counsel for the parties and perused the records. 5. During the pendency of the petition, the petitioners filed an application seeking production of annual confidential reports of the petitioners by stating on affidavit that the petitioners were never communicated adverse confidential reports and, therefore, it is their apprehension that either there was no proper evaluation of their ACRs or there was un-communicated adverse confidential report, on account of which, they were awarded less marks in final analysis with the result that respondents No. 3 8s 4, who had secured less marks in written examination, were selected. 6. In' view of the nature of controversy involved in the petition and there being no objection to production of confidential report of the petitioners, the application for production of confidential report was > (2008) 8 SCC 725 2AFR 1991 SC 1216 3AIR 1996 SC 1661 -4- ^ allowed. On 6.10.2009, the State was directed to make available the relevant ACRs of the petitioners and respondents No. 3 & 4. On 16.12.2009, another opportunity was granted. On 19.1.2010, it was informed that ACR of the petitioners alone are available and time was spught for production of relevant ACRs of respondents No. 3 & 4. Official respondents were directed to keep available relevant records for perusal of ffie ©burti.e. original statements of inarks as prepared by the Selection Committee, awarded to the candidates including the petitioners and respondents No. 3 & 4 after written examination and assessment of marks. On 13.4.2010, time was again sought by the respondents to place on record relevant ACRs of the petitioners and respondents No. 3 8s 4. Thereafter, the respondents produced before this Court the ACRs of the pedtioner No. 1 in respect of the year ending 31 March, 1991, 31st March, 1992, 31st March, 1993 SE 31st March, 1994 as also ACRs of petitioner No.2 in respect of the year ending 31st March, 1990, 31st March, 1991, 31't March, 1992, 31°t March, 1993, 31st March, 1994 and 31st March, 1995. Respondents have also produced the ACRs of respondents No. 3 8s 4 in respect of the period ending March, 1998 onwards, but the ACRs of the relevant preceding five years i.e. ACRs till 31stMarch, 1995 were not produced. 7. Respondenfs have not produced before this Court the statements of total marks obtained by the petitioners and respondents No. 3 SE 4 in the process of selection in order fo establish their contention that the petitioners secured less marks as corapared to respondents No. 3 8s 4. " It is also not known as to in what manner the assessment of ACRs of the petitioners and respondents No. 3 & 4 were raade by the Selection Committee. -5- 8. Prom the retum, it is disclosed that for the purpose of evaluating ACRs, following marking system was adopted : 1. For category A+orA 20 marks 2. ForcategoryB 15 niarks 3. For category C lOmarks The respondents have not disputed the^ avernients made in the •^ " • ^- petition that in the written examination, the petitioner No.l obtained 72 out of 100 marks and petitioner No.2 obtained 71 marks out of 100 inarks. In the absence of any specification either in the notification dated 17.7.1995 or in the return of the respondents, preceding five years ACRs in respect of the period prior to the date of notification dated 17.7.1995 would be relevant ACRs for the purpose of consideration, meaning thereby that ACR uptil the period ending 31st March, 1995 were to be taken into consideration. 9. It is, however, found that the respondents have produced ACRs of the petitioner No.l only in respect of four preceding years i.e up to the period ending 31st March, 1994 and his ACR for the period ending 31st March, 1995 has not been produced. In respect of the petidoner No.2 ACRs of preceding 6 years have been produced. ACRs of the petitioners No. 1 in respect of the four preceding years, are as below: 1. Periodending31stMarch 1991 'Sfi + 2. Period ending 31stMarch 1992 3. Period endirig 31st March 1993 4. Period ending 31st March 1994 q; + ^ + ^ + Respondents have neither produced the ACR of petitioner No.l for the period ending 31st March, 1995 nor such non- -6- / production has been explained by any affidavit/additional return and respondents have not even placed before this Court original statement of marks as prepared by the Selection Committee which were awarded to the petitioners and respondents No. 3 & 4. On 13.4.2010, this Court had observed that if relevant records are not made available, adverse inference shall be drawn. Therefore, in view of the averfnent made by the petidoners in the petition in respect of petitioner No.l that all his previous ACRs are excellent and there being no specific denial in the return, this Court is inclined to draw an inference that ACR of the petitioner No. 1 in respect of the period ending 31st March, 1995 was also excellent i.e. ^ + . Thus petitioner No.l was entitled to 100 marks. In the absence of their being any disclosure as to the total marks awarded to petitioner No.l by the Selection Committee, non-production of relevant records, stateraents of marks, leads to irresistible conclusion that there was no fair assessment ofACRs ofpetitioner No.l. 10. In so far as petitioner No.2 is concemed, gradings in respect of preceding five years ending March, 1995 is as under: 1. Period ending 318t March 1991 "T 2. Period ending 31st March 1992 3. Period ending 318t March 1993 4. Period ending 31st March 1994 5. Period ending 31st March 1995 •T ^ ^- ^? As per the criteria of marks laid down by respondents in respect of ACRs grading, petitioner No.2 would have obtained 10 marks each for the ACR of year 1991, 1992 8s 1993, 15 marks for the ACR of year 1994 and 20 marks for the ACR ending 31st March, 1995. Thus, in all, -7- he was entitled to 65 marks in respect of ACR gradings. If the same is added to the marks obtained by him in written examination, the total comes out t6 136. Respondents have stated in their retum that the last candidate selected in general category secured 165 marks, whereas last candidate selected in the merit list in S.C. category secured 144 xnarks and the last candidate selected in OBC category secured 158 marks. Therefore, it c&inet be said that petitioner No.2 was subjected to any illegal or arbitrary evaluation of his ACRs. Submission of learned counsel for the petitioner that had the low grading in his ACR been coramunicated to him, he would have improved upon his performance or ruade representation for grant of better gradings, cannot be accepted as the remarks are not adverse in nature so as to require communication. 11. In fact perusal ofACR in the year 1991 up to the year 1995 shows that the petitioner No.2 improved his grading in the year 1994 and he was graded as "^ and further improved in the year 1995 and he was graded as "^. Thus, it is not a case of downgrading, but upgrading of ACRs of the petitioner. In the year 1991, 1992 Ss 1993, petitioner No.2 earned only UTf grading which is lower than "'ss 8s "^ both. Reliance placed by the petitioners in the judgments of Suprerue Court in the cases of Dev Dutt (supra), E.G. Nanibudiri (supra) 85. Prabhat Chandra Jain (supra) are therefore, clearly distinguishable on the peculiar facts of the present case. 12. Learned counsel for the petitioner has also relied upon the decision of the High Court of Madhya Pradesh in the case of Sharda Prasad Pathak Ss Abdul Haaue Vs. State of M.P. BB others {W.P. No. 11836/03 {O.A. No.2999/97) and other connected matters decided -8- $ on 16.12.2004 by submitting that in those batch of petitions also, patwaries and revenue inspectors had challenged their non-selection in the same process of selection initiated by notification dated 17.7.1995 and in that case, the Court found that even though it was nowhere prescribed in fhe laid down procedure of selection under notification dated 17.7.1995, superseded by another notification dated 27.12.1995 with regarc^to-evaluation of ACRs by another DPC, selection were based on the recommendations made after another round of evaluation ofACRs done by subsequent DPC. A perusal of the order passed by the High Court of Madhya Pradesh in the aforesaid batch of petitions shows that the Court had considered the case of other patwaries and revenue inspectors who were not selected /in fhat very process of selection which concerns the pedtioners in the present case. In that case, it was observed fhat DPC first met at Gwalior, wherein members of DPC on the basis of ACRs, prepared the selected list without changing grading of ACRs, but later on another DPC was constituted at Bhopal which changed the grading of the candidates as well as of petitioners who had passed the written examination. In that background, it was held fhat such an action of re-evaluadon and change of grading by another DPC was contrary to the laid down procedure and norms ofselection and therefore unsustainable in law. However, in the present case, the respondents have produced before this Court the ACRs recorded by their competent authority. In the present case, it is neither the case of the petitioner nor of the responderits that fhe petitioners could not be selected on the basis of grading given to them by subsequent DPC held at Bhopal. I have held that in so far as the case ofpetitioner No.l is concerned, the sanie was not considered in just and fair ruanner. However, even if it is accepted that selections were to be made by awarding marks on the basis of ^ -9- grading of ACRs without further evaluation by any other DPC, the petitioner No.2 is not entitled to any benefit because even if relevant ACRs of preceding five years are made basis for evaluation and award of marks as per the criteria laid down by the respondents, it cannot be said that the petilioner No.2 was entitled to higher marks than marks secured by last candidate either in the general category or in OBC category. :ss' ^- 13. As an upshot of above discussions, in my considered opinion, in so far as case of petitioner No.l is concerned, his case has not been considered in a just and proper manner, therefore, the petitioner No. 1 is entitled to appropriate relief. However, the petitioner No.2, in view of the findings recorded by this Court hereinabove, is not entitled to any relief. 14. Respondents No.l (now State of C.G.) 85 respondent No.2 {now Commissioner, Land-Records & Settlement, Chhattisgarh] shall reconsider the case of the petitioner No.l in accordance with law by awarding him marks based on the basis of grading given to him in relevant ACRs of preceding five years. If as a result of the aforesaid exercise, petitioner No.l is able to secure more marks than marks secured by last candidate in the general categoiy, he will be entitled to appointment on the post of Nayb Tahsildar with all consequential benefits except actual arrears ofpay. 15. Consequently, the petition of petitioner No.l is allowed in the manner ^and'to the extent indicated above and petition of petitioner No.2 is dismissed. There shall be no orders as to costs. Praveen ?Aani sd'^<lhrtvasW»< ^ra^sbrtvasw"l judge