v'^^\^^^^^'kA-^^^';^^^^^j\/^7^^^J^^j~y^^ 'iS'a "\ ^ IN THE HTGH GOURT OF JUDICATORS AT JABAIiPOI^, M.P WRTT PETITION N0. e!?<l7 ^-—OF1996 PETmONER ^& PONDENTS Ashek^Kamar Babey» age^ 41 years» son of | Shri siiiv Narayan Dabey, ^ssistant ^ ' i Bngineer, Kai3hya Pradesh-'Aayogrk Kendra , Vikas Nlgam, Ralpar. . v^sl . / . ,. ' . ::;;t 1. Madhya Bradesh Adyoglte Keadra Vlkas ! Nigam, Ral.par, througfa Its Managing ; Bi.rectoi-, B/4, M.B.ColbBy, Sbd'ti'etodra i Nagar, Baipur. 2. Shri B.K.Kalshreshth, Depaty Projact | Englneer, Hadhya t'radesh Adyoglk KeHdr^l Vikas Nigam, B/4, M.R.Coloay, . 1 Sbailendra Nagar, Ralpur. B -ei.^^SftF^=;8»<»"~^-"*' •:—T-i!u»»i^-.~ WRtT ..PB'EIMOH .OTSBBR .ARTIC&ES 226/227 ^O? ,1HE CONSTT'PBT^OIT OF SES3A. fQET'ISSVtSBCS^QS AN'ABPROPRIATE WR3T,, BIRECTION AND/OR ORDER. ~^~~~~ *-: -,f s&^KSsiS^ •'fi /'''I..II /. ,n'' ffl^ 11-' •^l ES"1 ^•••^•'•'^':-.' K'" !&'• fe Sit?jjflj|s||^ 1-1 O IQ o 6 so a ts, ai a' (t (B B> w EI' t( .9" I* §• u <» |-U irr >» & M v B)st* n ^ 01 (". ? 11i rr H-n It^- ¥-• HIGH COURTOF CHHATnSGARH, BILASPUR Writ Petttioa No. 3472 of 1996 •»< f.. .^ Ashok Kumar Dubey Vs, Madhya Pradesh Audhyogik Kendra Vikas Nigam aud others ORDBR Ar 09.11.3006 SdA »"nJlKumarSinha --~^—>Judge -FB"""°''"- II.-.; ^ rfll RW ,.<!' HIOH COURT OF CHHATTISGARH.BILASPUR Writ Petttion Ho. 3472 of 1996 Ashok Kumar Dubey Vs. Madhya Pradesh Audhyogik Kendra Vikas Nigam. andofhers , Aooearaace: Shri Prashant Jayaswal, Seiuor Advocate wifh Shri Ali Asgar Advocate for the petitioner. Sfari Gautain Bhaduri, counsel for respondents no. 1 & 3. Shri S.P. Shanna, counscl for respondent no.2. ORDBR (09.11.2006) SuaU Kumar Siaha, J. (1| By way of this writ petition, the petitioner has prayed to quash the proinotion of respondent no.2 vide order dated 06.7.1996 fited as Annexure P-6 wifh a direction to the concemed rcspondents. to constitute a &eab Departmental Proinotion Coiumittee (D.P.C.) and issue proper directioii to the D.P.C. on the criteria for proinotiori. (2| The brief facts are fhat fhe petitioner was appbinted as Junior Engineer on 26.3.1982. He was piomoted to the post of Assistant Eagineer with effect fixim 08.1.1990. Prior to the allcged D.P.C. he had coiapleted 5 years service on the post of Assistant Engmieer as statutorily required for consideration to the next h^her post. The next lugher post is the postofDepuly Ftoject Engineer. In the D.P.C., thc case ofthe petitioner as weU as respondent no.2 both were considered and ultimately ou the recoiiuaendations of fhe D.P.C. respondent no.2 was proinoted vide order dated 06.7.1996 whieh has been unpugned in this ,writ petition. The rules appUcable ia case ofthe petttioner are Tbe Madhya Pradesh Audyogik Kendra Vikas Nigam Maiyadit vjKaraiaehari SewaNyam 1994-1995 (faeremafter referred toj as ~fhe Rules) andjlie criteria for promotion is semority-cum-mierit BH -Z-. u"t k It is the case of fhe petitioner himself fhat the respondent no.2 was senior to him as his name comes at Serial No.2 and the naine offhe petitioner comes at Serial No.3 offhe gradation list published on 01.04.1995 filed as Annexurc P-2. (3) The petitioner chalteiiges the promotion of respondent no.2 dn the ground fhatthe services ofrespondent no.2 were not satisfactoiy as prior to 1984, fhe respondeut uo.2 was imposed wifh fhe penally of wifhholdirig of uicreinent for one year and fhcreafter ay,am. a deparbnental euquiry was instituted agaiust 1iim aad in the sgud epquiry he was imposed with penalty of waming. Raising these two poiats oaly, the contention ofleamed seiuor counsel for the petitiouer was fhat in fhe above facts aad circuinstances, respondent no,2 could not have been proiuoted as conipai'ed to the pctitioner who has not been imposed with aay penalty and no adverse reiaarks have beea made against him.. The overatl submissiou was fhat between the petitioner aad respondent no.2, the petitioner was a better candidate aad he should faave been recommended for promotiousuperseding fhe case ofrespondent no.2 by the D.P.C. Aboutjurisdiction arid scope ofmterference, learaed counsel reUed upon the decision of fhe Apex Court rendered m the matter of Beittrtiuith -vs- Qoot. ofTmnll JVewte <ind others. AOi 2000 S.C.3243. (4) The contention of fcamed counsel for respondent no.2 was fhat though his one increiuent as Jiuuor Erigmeer was withlield in the year 1984, but, thereafter, he was promoted froin. the post of Junior Engmeer to the Post of Assistant Enguieer by order dated 08.01.1990 (Annexure R-2/1) and on receiving proinotion to fhe ucxt tt^her post, fhe penalty iiaposed earlicr was wiped out. So far ofher aUegations in relation to a subsequent departiaental eaquuy are conceraed, it was contended that the said dcpartmental cnquuy was dropped aad as an advice, fhe respondent n0.2was only cauti.oned to be inore careful ia future and no penally ofwaming was iinposed against him as is atleged by fhe petitioner. He has filed the copy oforder \ dafed 18.7.1995 vide Annexure R-2/3 to support his , contentions. 'Referring aU fh.ese, it was aigued'fhat sirtGe -<»' 41^ nofhiag adverse was prcvailing agaia.at this respondent prior to the laeeting of D.P.C. and he was senior to the petitioner, fhe D.P.C. has rightly recoimtnended his name and his proinotioa was in accordaace wifh law. Counsel for respondent no.l & 3 also supported thecase ofrespondent no.2. (5) WIule dealiag with the Badrinccth's oase (supra), the Apex Court held vide Para 40 that luiless fhere is a stpoag case for applymg Wednesbury doctrme or there are malafides, Courts aad Tribunal cannot iaterfere with the assessments inade by the Departmental Proinotion Coinmittee in regard to the inerit or fitness for promotiou. In lace cases ifthe assessinent is either proved to be inalafide or is foimd based on ijiadnussflble or u-relevant or iusigruficant aad trivial material - and if an attitude of^normg or not giving weight to the positive aspects of one's career is strongly displayed, or if the interference drawn are such that no reasoiiable persoa can reachsuch conclusions, or if fhere is iUegalily attached to the decisioa, - fhen fhe powers ofjudicial review under Article 226 ofthe Constitution are not foreclosed. (6) Relying on and referring to various earlier ppDnouncements, the Apex Court suiumarized the principtes vide para 59 as under: (I) (u) Under Article 16 of fhe Constitution, right to be 'considered' for promotion is a fundamental right. It is not the mere 'consideiation' for proiaotion that is unportant but the consideration inusf be 'fair' according to estabUshed principles govenung service jurisprudence. Courts will not iaterfere with assessment inade by Departmeutal Proiaotiou Comxnittee unless the ^grieved officer establishes that fhe non-promotion was bad according to the Wednesbuiy Prmciples or was it -inalafides. ;i E' 1 -lt 4^ (iii) ssaf (iv) (V) w Adverse reinarks of an officer for the entire period of serviee can be taken into consideration while promoting an ofiBcer or while passuig an order of conipulsoiy retireiaent. Bui~the wdght which must be attached to fhe adverae remarks depends upon certaia sound principles offairaess. If fhe adverse reinarks relate to a distant past and relate to remarks such as his npt putting his inaximum efFort or so on, then those remarks caanot be given we^ht after a loug distence of ttme, particularty if there are no such remarks diuing the period before his pioinotion. This is the position even in cases ofcomipulsoiy retireinent. Ifthe adverse reinarks relate to a period prior to an earlier proiuotion ffaey inust be treated as having lost fheir sting and as weak material, subject however to tfae rider that if they related to dishonesty or lack of iategrily they can be considered to have not lost their strengfh fulfy so as to be ignored altogether. Uncomiaiuucated adverae remarks could be rellied upou even if no opporttuuly was given to reprcsent against fhein before an order of compulsoiy retirement is passed. iiaii v-i::' ^ \^ (7( Therefore, it is clear that the consideration for the proiaotions must be fair and nonnally the Courts wffl not interfere wifh tfac assessiaent made by the D.P.C. unless non- promotion was bad according to the Wednesbuiy's principles and was mala-fide. The adverse reinarks are to be given weightage on soiind principles of fairaess aad the adverse reiaarks relatuig to a period prior to an earUer promotion are treated as haviiig wiped of subject to the rider fhat ifthey relate to dishonesty or lack ofiutegrity fh.ey can be considered to have not lost their strength fully so'as to be iguored. (8) In the present case, so far as the first point rcgaiduig punishinent of with-holding of increment f6r one year is conceraed, ffae document placed on record is fhe pay fixatiou order of June 1984 pertauung to inany employees nicluding the respondent no.2 and it has been mentioned that the increment ofrespondent no.2 was wifhheld for one year. Aduuttedfy, fhis piiTiishinent was imposed on respondent no.2 wtule he was working as a Junior Engineer but after fhe said date, the petitioner and respondent no.2 both werc proinoted to the post of Assistant Enguieer by a cpinmon order dated 08.1.1990 as per the recoinm.endations of the then Departmental Proinotion Committee. Ttiis order ofpromotion dated 08,1.1990 was never chaUenged by the petitioner or any other pcrson. Why this punishiuent was unposed has notbeen brought on record. (9) The Apex Court has stated in tfae matter of Badrmath (supia) that if fhe adverae remarks relate to a period prior to aa earlier proinotion they niust be treated as haviag lost fheir sting and as week inaterial subject to rider that if they relate to dishouesty or lack of lategrity they cau be considered to have uot lost their strength fuUy so as to be iguored altogether. In Brlt SXohan Slnah -ps- Stecte ofPunlfdi AIR 1987 S.C. 1948, the Apex Court said fhat wlule considering the question of preiaature: retirement, it may be desirable to inake au overaU assessinent of govenuneut servaat's record, but while doiag that, more value should be attachcd to fhe confidential reports pert&inmg to the^ years iininediately precediag such consBlerafis(&s.,,3*he,apex Court lald dowfi that it is possible fhat fc-- -u 1^ a aew entraat to a service inay hare committed Bnistakes and for that reason, he niay have entered adverse reinarks and ifthosc entries of early ycars of serviee are takea into consideration for prematiirely retirmg a gdverament exnployee then perhaps n6 employce would be safe even fhough he may have brilliant record of scmce in latter years. Relying on various other decisions referred to in para 7 of the said judginent, the Apex Court said fhat old and stale eatries should aot be taken into account wtule considering the qucstion of premature retirement, instead, the entries of recent past of 5-10 years shoiild be considered informing fhie requisite opinion to retire a Goveniment employee n^ piiblic interest. It woiiM be unreasonable aad unjust to consider adveise entries of reinote past aud to ignore the good entries of fhe recent past. The Apex Court opined that if the entries for a period of more than 10 yeara past are taken iato accouat, it would be an actofdiggiag out past to get sonie material to luake aa order agaiast the employee. This decision of fhe Apex Court has been referred in Badrinafh's ease (supia). TIiis aU relates to adverse reiaarks and if we apply the principles laid down by fhe Apex Court to the case ofa minor punislunent like the present onc, it can safely be said that in absence of any aUcgation of dishonesly or lack of iategrily pertauung to the aforesaid minor punisluaent, the said minor punishinent which was admittcdty iinposed prior to the year 1984 would be held to have lost its stmg in the alleged D.P.C and promotion which took place iu the year 1996, particularly, in the circujnstance when ariother unclialleaged proinotion was graated to the petitiQner and respondent no.2 in the year 1990 even after imposition of such a penally, aad I hold it accordingly. Therefore, the aforesaid ptuustunent was not a poiat for consideration before the D.P.C. pf 1996 and it cannot be said fhat jf the same was ignored, the action of D.P.C. is vitiated on fhis count. (10) About fhe seeond departoiental enquuy, copies of proceedings dated 26.9.1994 (ArmexureP-^fbaye been ffled on record. tt appears that 3 cfaargps were leveled a^inst respondent iio.2 sluch were in relatiou to coiistruGtion ofsomie t :;Sii M sa ~.- m w 3~i i >', \ "\.. :^WM>. B^tj -/PS 1 1 ^U& ^fe Mht). ^lb^ltb (* fcHi\ ll?iU ^ lltiU. (r t'b^ p^. ^. ta^b A1K <^ | ItiJi ihl^ ^ny Sti j^Mfe^ jnii ^-<fea^ ^ S-nlt--*^(|ip. 1 fte Ihh lt?<yii^ (t g6'£'OZ tfrl^y ^S^ ^ Z9 ^ R&nit-tbi.aiti^ ^^JK Kt> bii^ t?y>i^ bfeib i^yhyi^ ml ^hiK ^. $ii<fe in^y ^£&•fa^'^'fe^ ^ \>v>^ Si^ m^ ftyi??v& -00- 1 la.1^ h|jrl|+^j -bbt)»lUUyhy^ jt ^lcb l^l+y <b^ 'h^^ia^ j+ IMSI<)^] i^* m<t>y *|j|i3yp -b^J. '&tt.QsMk. •oj^ (i^ •y'^^rii '^h cbh.iaB. 'fia^j^ -^^ '^ S6/Z/81. 80S2/S6/2Ll&/l?.yy<C <^\W (it&ha f6tlSa Iffi i^ih|h. n»J kiiy miby (byiiaye 'll'l^ s^yi^ (i£u^Uiy wt'y s^ (&yW Q&oh,, •japTm. SB pa^onl) are g/g-y ainxaiiiivjo Sfasyaoo sqj, •i[joA aip Suronoj.iad 3]TqA aji4iy ui pyareo aiom aq o^ patMBA ^pio SBM g;-oTi ^aapuodsai pire paddaxp ai3A Atinbna jo sSTiipssocud aq^ i(p^BTtrp-[n fBTy.swaffs qoTqA S66T'/'8I pa^P japio UB si qop{A g/g-y ainxaaav •piarawwp jo s^aa^aoo sip Q( siajar au 'g'oa ^iiapaodsaj ^siireSB pssodun SBA Aiinbiis spp a^ 8uiuiifljad ^itaroqsnind' on ^nq 'pa^onpaoo SBA Ainbaa siip qgnoip ^CTp SKimqns g-oa^aspiiodsai.foj psinioo pslueyi di) •^aamnoop pres sip ui paitopasnt ussq OSIB SBff ss&TBqo aq^ cqi uopBiiB(dxa wy •jcqoaq.a^) aip o» ^ganaq aai8 0} aoRita^ui IIB ipiA aaop qjoA aqt jo ^aamainsBam SIIOIM siaos SBA aiaip .iip8B[ pae ^sa^ A»i[BnI»Sup.onpuoo ^noipiA pssn SBAI ^ttmoofff) jBsxxpavi aq). pue s'ationjeovaqoa^ aip p3AOi[oj ^oti peq g •ou ^aapaodsai ^Bip aiaA saSreqo aip jo ^si8 B poB pBoi L- (^T ^ -8- }^° 8i T (12) If we go through fhe rules appHcabfe in case ofparties, it would appear fhat only fhe following have been held to be putushment/penaKy as per rules of 1994-1995. "(1) ^) ^PfeT'qT^fT, ^ari^4i 'qr ^":rf?r '^v 'v wrPfcr ^CTT, fSre^ ^TOT^ET ^ ^N ^, TT? iRiv 'yP^fRtd t, te^ wrft w^r ';?IRRT, d<ii'Aridi 'qr sn^j'r •^ ^wrap ~^ ^m ^PT ^ ?~teft ^T^ srf^ ^ w^if w ^a^ l^t ITFT ^^T^^oftl f^qcT -^ m Wra-WT ^ fM ^ TR -qT ^f qT f^ft WT!WT if f^t I^T mcIWT ^ 4citcl'lf(1, (T) N (^) ^) il'i^l'RFft (13) A perusal ofthe relevant rule woiild show tfaat the caution to be more careful ia fature, as has been advised to respondeat no.3, evea without coinpletioa of departntental enquuy, has aot been defined as a puiusluaent or penalty as per the said ruks aad it caanot be said that any penalty as envisaged itnder the Rules was imposed against respondent no.2 ia the said departmental enquiiy. Rafher it comes on record that just after comptetioa of the enquiry and fitmg of tfae enquiiy report, the Board of Diiectors took a deGision to drop thc eaquuy aud they Qnly issued a memo to respondent no.2 advising lum to be more carcfiil ia fature. Therefore, m fhe facts and ciroumstances it caimot be said that aay puiusluneat was standing agairist respondeut no.2 pertaining to the aforesaid enqiiuy mitiated agamstium prior to the said D.P.C. It was tried to substantiate fhat the aforesaid advice/direction to t>e careful in future would amoimt to a censure which has been lield to be a penalty undcr the Rules. Needless to say that the censure cajanot be equated with a wammg because fhe censzire is a penalty under the aforesaid Riiles and llie same caa be imposed oiily after completion ofa departmental eaquiiy and fhe punishment of fKe censure aad simpty issuance of an advice to be inore carefulita ^iuture wjthout cmttipletion of enquuy are the species of twh djffe.Eeut^iwses.fVi semce jtirispirudence. Tfaere is jao force ja Et -fflt -> ^^ this second argiunent advanced by learaed counsel for the petitioner and the same cannot be accepted in the facts and circuinstances offhis case, particiilarfy, when fhe enquiry itself was dropped aad no penalty was imposed agaiast the respondentno.2. (14) Lasfty, feamed coi.msel for the petitioner referred to the note sheets ofthe department, writtenon the appUcation offhe petitioner fUed on 12.12.2002 for givmg hun proiaotion with retrospecti.ve efFect He refeired to the last p^ge of these note sheete in whfch oa 04.04.2003, thc Masagfttg Director has wntten for approval about the retrospective proinotion offlie petitioner by giving inany reasous. These departmental note sheets subsequently written on 04.4.2003 on fhe appBcation/ representation made by fhe petitioner on 12.12.2002 caanot be co-related with the proceednigs of the statatority constituted D.P.C., whose meeting took place way back ia fhe year 1996 and tfae respondent no.2 was promoted as per its recominendations. In the ppuuon of fhis Coiirt, these official note sheets are not helpftil to the petitioner so far as prayer for quashmeat of proinotioa ofrespondent no.2 is conceraed. (15( Therefore, m the facts and circumstances, the assessment inade by tfae D.P.C. regarding merit or fitness ofrespondent no.2 and the proinotioa in consequence fhereof cannot be interfered with by this Court. The present is aot a case ia which the assessment is either malafide or is based on iaadmissible or irrelevant or ins^nificant and trivial material. The respondent ao.2 was senior to the petitionerand the criteria of seniority- ciun-inerit was to be applied,wliich has been applied aad no grounds for iaterference therein are niade out ia this case. (16) The petition has no merit and the saiae is dismMsed. However, there shaU be no ordeis as to costs^__———~, Sdl'- • ', 1 SunUKumarSinha i — _ Judge 6 i ii 1 K- H'l' M rS3E3iBS5B