V-/" 1 EEt!G? ^ ) 6°2- IN THE HIGH COURT OF CHHATTJSGARH AT BILASPUR WRIT PETITION (S) N0. /2»^6 / 3007 PETITIONER , \\v" ^// ^y ^w- -y».^ /\^y ^~'>y <^/ ^' :Basant Ku. Yadu S/o Late Hemnath Yadu Aged about 50 years R/o New Tikrapara, Tehsil- Khairagarh Dist- Rajnandgoan (C.G) Versus RESPONDENTS 0°^..2- State of Chhattisgarh Through the Secretary, Public Works Department, Mantralaya, D.K.S. Bhawan, Raipur (C.G) Engineer in Chief PWD, Department D.K.S. Bhawan, Raipur (C.G) Superintendent Engineer PWD, Durg Mandal Dist- Durg <<?•?'9Mt*'"^.; ,<^s^-^ /^^^'^^. (fc?/APARNA\^ J*f MAkW^ ^l Vl^^§^ .t-.\ v-/^ruyt/>,r// Executive Engineer PWD (B&R), Sub-Division Office, Khairagarh Dist- Rajnandgoan. (C.G) Shri D.D. Limbu Aged about 58 years Working as Asst. Grade-111 PWD (B&R),;; Sub-Division Offic&, Khairagarh Dist- Rajnanclgoan. (C.G) 6. Shri D.D. Sahu Aged about 57 years Working asAsst. Grade-111 PWD (B&R), Sub-Division Office, Khairagarh Dist- Rajnandgoan. (C.G) 7. Shri R.K.Pandey Aged about 55 years Working as Asst. Grade-111 PWD (B&R), Sub-Division Office, Khairagarh Dist- Rajnandgoan. (C.G) 8. Shri U.P. Singh Aged about 54 years Working as Asst. Grade-111 PWD (B&R), Sub-Division Office, Khairagarh Dist- Rajnandgoan. (C.G) WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF A SUITABLE WRIT ORDER OF DIRECTION J:0 DO JUSTICE IN THE MATTER. r ^-^^. 1 . ^S^ S M- -^- HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 1356 of2007 PETITIONER : Basant Ku. Yadu. VERSUS RESPONDENTS : State ofChhattisgarh& Others. WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. A^nHiotri, J, Present: Shri H.S.Ahluwali, Advocate for the petitioner. Shri V.V.S.Moorthy, Deputy Advocate General for the State/respondents 1 to 4. ORDER(ORAL) (Passed on 29th day of April, 2010) 1. By this petition, the petitioner seeks a writ in the nature of maadamus directing the respondents to promote the petitioner w.e./the date his juniors have been promoted, with all consequential benefits. 2. The facts, in nutshell, as projected by the petitioner is that the petitioner was working on the post ofAssistant Grade III in the PWD (B&R) Department at Khairagarh, District Rajnandgaon. The respondent No. 3 issued a gradation list on 01.04.2005 in which the name ofthe petitioner found place at serial No. 2 and the respondent N6. 5 to 8 found their places at serial No. 3 to 7, respectively. The respondent No. 5 to 8 were promoted to the post of Grade II (Clerk) vide order dated 14.02.2007 by the respondent No. 3,even though, they were juniors to the petitioner, 3. Leamed counsel appearing for the petitioner submits that the petitioner came to know by reply dated 08.03.2007 to his representation dated 21.02.2007 (Annexure A/l) that there was an adverse remark in the year ending on March, 2006. The petitioner replied to the letter dated 08.03.2007 vide his representation dated 18.03.2007 (Annexure A/3). ,.:^35?i-.. . .cc-ft ~°l .f^-f!i •-1-, <£%-*'-. Y|fe«^y "^ss^^ 9. e It is brought to the notice of this Court by Shri Moorthy, learned Deputy Advocate General that since an adverse remark for the year ending on March, 2006 was not communicated, thus, the preceding five year's ACRs were taken into consideration and the petitioner was found unsuitable for promotion. On perusal of the proceedings of Departmental Promotion Committee, it is found that the petitioner was awarded adverse remark 'C' in the year ending on March, 2000 and March, 2001 which was considered by the DPC and he was found unfit on the basis ofsaid un-communicated remarks. Leamed counsel for the petitioner submits that the petitioner was never communicated any adverse remark during his service time. Law is well settled that the DPC would not take into consideration any un- communicated adverse remark. In the case on hand it is a clear case where the un-communicated remark 'C' for the year ending March, 2000 and March, 2001 were taken into consideration without communicating and seeking response ofthe petitioner. The Supreme Court, in Dev Dutt v. Union of India & Others , observed as under: "9. In our opinion every entry must be communicated to the employee concerned, so that he may have an opportunity ofmaking a representation against it ifhe is aggrieved." This Court, in K.P.Patel v. State ofC.G. & another , while deciding a similar issue, observed as under: "23. In the present case the petitioner was not communicated any entry/remark which affects the right to promotion, as he was declared 'not fit' by the DPC for promotion to the post of Executive Engineer on 'JT2008(7).SC463 2 2006(1)c0u 264 •\-...-.-..----- ^ Amit regular basis. The said adverse entry/remark, if any, is found, the same could not have been taken into consideration without affording an opportunity to the petitioner to submitting appropriate reply/explanation to the adverse entry/remarks made in the confidential report. As such, the assessment of the DPC that the petitioner did not meet the required criteria is without any basis and deserves to be quashed. Further the DPC has made comparative assessment of all the candidates, which is in violation ofthe sub-rule (7) ofRule 6 ofthe Rules, 2003, thus the entire proceeding deserves to be quashed." 10. Admittedly, in the present case, adverse remark 'C' in the year ending on March, 2000 and March, 2001 were awarded, and the same was considered without verifying the fact that whether those adverse remarks were ever communicated or it remained uncommunicated.. The DPC, after having considered uncommunicated remarks, it appears, has found the petitioner as unfit. Such entries could not have been taken into consideration by the DPC. 11. Applying the well settled principles of law to the facts of the case on hand and in view of the foregoing, it is necessary and expedient that the petitioner should be communicated the adverse remarks for the year 2000 and 2001 and on receiving the response of the petitioner, appropriate orders may be passed in accordaace with law. If the adverse remarks, thereafter, are deleted or improved in fayour of the petitioner, the case of fhe petitioner shall be considered for grant ofpromotion w.e.f. date his jimiors have been promoted when the petitioner was eligible and being at serial No.2 in the seniority list as on 01.04.2005 (Annexure P/2) and was very well within the zone of consideration. 12. With the aforesaid observation and direction, the writ petition is allowed. No order asto costs. Satish K. Agnihntri Judge R