Chattisgarh High Court
Sanjeev Kumar Tiwari vs State Of Chhattisgarh on 20 September, 2023
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
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AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Writ Petition (S) No. 2969 of 2017
Order Reserved On : 26.04.2023
Order Pronounced On : 20.09 .2023
Sanjeev Kumar Tiwari S/o Shri S. S. Tiwari, Aged About 49 Years
Presently Working As Joint Director, Public Relations, Directorate
Of Public Relations, Indravati Bhawan, New Raipur District
Raipur Chhattisgarh., Chhattisgarh
---- Petitioner
Versus
1. State Of Chhattisgarh Through Its Secretary, Public Relation
Department, Mahanadi Bhawan, Mantralaya, New Raipur,
District Raipur Chhattisgarh., Chhattisgarh
2. Director, Directorate Of Public Relations, Indravati Bhawan, H O
D Building, New Raipur District Raipur Chhattisgarh. , District :
Raipur, Chhattisgarh
3. Under Secretary, Department Of Public Relation, Govertment Of
Chhattisgarh, Mahanadi Bhawan, Mantrayala, New Raipur
District Raipur Chhattisgarh. , District : Raipur, Chhattisgarh
4. Umesh Mishra Joint Director, Public Relations, Chhattisgarh
Information Centre, 3rd Floor, Chankya Bhawan, Chankya Puri,
New Delhi., District : New Delhi, Delhi
-Respondents
________________________________________________________
For Petitioner : Mr. K. Rohan, Advocate
For Respondents : Mr. Animesh Tiwari, Deputy Advocate
General, Mr. R.K. Jha, Advocate
________________________________________________________
Hon'ble Shri Narendra Kumar Vyas, J.
CAV ORDER
1. The petitioner who was working as Joint Director in the Public
Relations Department, Government of Chhattisgarh, Raipur has
preferred this writ petition with prayer for quashing of note-sheet
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dated 07.11.2013 (Annexure P/13) by which the petitioner’s
representation for upgradation of ACR has been rejected, the
petitioner has also challenged the action of the respondents in
downgrading of the Annual Confidential Report (ACR in short) for
the year 2007-08 and 2008-09, due to which he has been
deprived of promotion on the post of Joint Director and has been
superseded by his junior on 07.12.2010. He is also assailing the
order dated 31.012.2017 by which respondent No. 4 (Umesh
Mishra) who is junior to him has been promoted to the post of
Additional Director from the post of Joint Director and the order
dated 06.04.2018 by which his case seeking review DPC has
been rejected.
2. Brief facts as reflected from the records are that the petitioner
joined as Assistant Director in the year 1994 through Public
Service Commission. After reorganization of State of Madhya
Pradesh as State of Madhya Pradesh and Chhattisgarh in the
year 2000, he was allocated to State of Chhattisgarh. Petitioner
was promoted as Dy. Director on 14.10.2003 whereas
Respondent No. 4 was promoted to the post of Dy. Director on
20.10.2006 as such he was junior to him.
3. The petitioner was graded ‘Excellent’ in ACR from 2003 to 2007
and from 2009 to 2012. But he was graded ‘Very Good’ in ACR
for the years 2007 to 2009 and again in the year 2013-14 he got
‘Very Good’ which was upgraded to Excellent.
4. The respondents conducted DPC for promotion on the post of
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Joint Director in the month of October, 2010 for 6 posts wherein
3 posts were for General Category, 1 post for Scheduled Caste
Category and 2 posts for Scheduled Tribe Category. The
petitioner was senior in the cadre of Dy. Director but vide
impugned order dated 07.12.2010 he was superseded by
respondent No. 4 and he was promoted to the post of Joint
Director. Subsequently, after creation of 2 extra posts of Joint
Director, the petitioner was promoted to the post of Joint Director
on 01.03.2011. The petitioner preferred an application for
providing ACR of 2007-08 and 2008-09 which was provided on
03.03.2012, which shows that the reporting authority had
awarded Grade A for the year 2007-08 the same was accepted
by the Assessing Officer, however, in the ACR for the year 2008-
09, Reporting Officer awarded A+ grade, the same was
downgraded to ‘A’ by the Assessing Officer without assigning
any reason. Moreover, ACR of respondent No. 4 was upgraded
from A to A+ quoting good relations with National Media. The
petitioner preferred representation on 04.07.2012, however, no
decision was taken by respondent No. 1 and after one year, a
letter dated 05.08.2013 by which it was communicated to him
that the representation shall be decided by the Public Service
Commission (PSC). Accordingly, he again filed a representation
on 28.10.2013. The record of the case would show that ACR for
the year 2013-14 was downgraded from A+ to A without
assigning any reason. Therefore, he again submitted a
representation on 11.08.2015. Thereafter on 12.04.2016 he sent
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representation for reconsideration of the adverse ACRs for the
year 2007-08 and 2008-09. Pursuant to representation dated
11.08.2015, his remarks in the ACR for the year 2013-14 were
upgraded and maintained as A+. His representation for
reconsideration of ACRs for the year 2007-08 and 2008-09 is
still pending.
5. Learned counsel for the petitioner would submit that petitioner
has preferred this writ petition on 29.06.2017. During the
pendency of the writ petition his ACRs for the year 2007-08 and
2008-09 were upgraded ‘Very Good’ to ‘Excellent’. Since, his
ACRs were upgraded, therefore, he moved an application for
consideration of his representation dated 06.11.2007 for
conducting review DPC. During the pendency of the petition,
respondent No. 4 was promoted to the post of Additional
Director. Apart from the factual matrix of the case, the petitioner
has referred to judgment of the Hon’ble Supreme Court in case
of Dev Dutt v. Union of India {(2008) 8 SCC 725, Abhijit
Ghosh Dastidar v Union of India {(2009) 16 SCC 146,
Sukhdev Singh vs. Union of India {(2013) 9 SCC 566}, Anil
Kumar v. Union of India {(2019) 4 SCC 276}, Pankaj
Prakash v. United India Insurance Co. Ltd. {(2020) 17 SCC
590}, R.K. Jibanlata Devi vs. High Court of Manipur {(2023)
SCC Online SC 178} and would pray for quashing of the order
dated 06.04.2018 (Annexure P/23) by which petitioner’s prayer
for review DPC has been rejected. This order has been
assailed in this writ petition.
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6. This Court considering the submission made by the petitioner
has passed interim order on 09.08.2017 that any promotion will
be subject to the outcome of this Writ Petition.
7. The State has filed their return and in paragraph 11 the State has
stated as under :-
“The answering Respondent respectfully submits that the
said claim of the petitioner was taken into consideration by
the appropriate authorities and it was decided with the
same would considered in accordance with the Rules and
Regulations of the State Authorities for fixing the seniority
of the petitioner from the retrospective period. It is
submitted that an opinion was also sought with respect to
the claim which was raised by the present petitioner
seeking retrospective promotion by conducting review
DPC and in view of the opinion which was rendered by the
Department concerned, the authorities had come to the
conclusion that the case of the petitioner was not fit for
consideration and grant of promotion from retrospective
effect or for constitution review DPC. Moreover, it is
respectfully submitted that the Departmental Promotion
Committee had, while promoting other concerned officers
over the Petitioner, had objectively and fairly considered
the case and that after due consideration the DPC had
reached to the conclusion of promoting the Respondent
No. 4 over the present Petitioner. The answering
Respondents respectfully submit that in view of the
categorical finding arrived by the respondent authorities
the answering respondents submit that claim of the
petitioner for grant of promotion from retrospective effect
and for consideration of his case by constitution of review
DPC is untenable and the same deserves to be rejected.”
8. It has been contended that Respondent No. 4 has rightly been
promoted, therefore, petitioner is not entitled to get any relief. It
is also contended that case of Devdutt vs. Union of India and
others {(2008) 8 SCC 725} is not applicable in the present
facts of the case as it is not the case where ACRs were not
communicated, therefore, prayed for dismissal of the writ
petition.
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9. Record of the case would show that notices issued to
respondent No. 4 were received unserved, therefore, vide order
dated 18.11.2021 notice was served through Dasti Mode,
thereafter the respondent No. 4 entered appearance on
21.12.2021, but no reply has been filed by him.
10. I have heard learned counsel for the parties and perused the
record.
11. Record of the case would show that the petitioner was not
provided ACR for the year 2007-08 and 2008-09, he moved an
application on 28.01.2012, thereafter, he was provided ACRs for
the said year on 03.03.2012, therefore, it is not in dispute that
the ACRs by which the petitioner has been downgraded was not
communicated to him though at the belated stage. The record of
the case would show that during the pendency of the writ petition
the ACRs of 2007-08 and 2008-09 upgraded from ‘Very Good’ to
‘Excellent’ on 24.10.2017 vide Annexure P/19. Thus, the rider
which was created for not promoting the petitioner in year 2010
has lost its significance as the petitioner’s benchmark which was
not up to the mark fixed by the DPC due to these ACRs has
subsequently removed. The issue only required to be considered
by this Court whether memo dated 06.04.2018 Annexure P/23
by which the petitioner’s prayer for review DPC has been
rejected.
12. Before adverting to the factual matrix of the case this Court has
to examine under which circumstances review DPC can be
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ordered by this Court or not?
13. The review DPC can be held only if the DPC has not taken on
material facts and consideration or if certain facts have not been
brought to the notice of the DPC or if there have been grave
errors in the proceedings of the DPC, review DPC should be
convened also to rectify unintentional mistakes, such as :-
(a) where eligible persons were omitted to be
considered;
(b) where ineligible persons were considered by
mistake;
(c) where the seniority of a person is revised with
retrospective effect resulting in variation with the list
placed before the DPC;
(d) where some procedural irregularities were
committed by the DPC;
(e) where adverse remarks of the ACRs of an officer
were toned down or expunged after the DPC has
considered his case;
(f) where certain vacancies had not been reported
due to error or omission or vacancies that existed at
the time of holding DPC.
14. It is well settled position of law that normally the High Court
should not interfere in the decision taken by the DPC unless any
violation of the rules is made out. The Hon’ble Supreme Court in
case of Union of India vs S.K. Goel {(2007) 14 SCC 641} at
para 28 has held that interference in the DPC is permissible in
rarest to rare cases. Similar views have also been taken by the
Hon’ble Supreme Court in various judgments but in the present
case the petitioner’s ACR for the year 2007-08 and 2008-09 has
been upgraded on 24.10.2017 and record of the DPC which was
produced before this Court would reveal that ACR which
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produced by the State along with the return wherein they have
considered the ACR for the year 2003-04 to 2008-09. The
comparison table between Sanjeev Tiwari the petitioner and
respondent No. 4 Umesh Mishra would demonstrate that
petitioner was granted less marks on the count that the petitioner
has secured only ACR “Very Good” for these two years where
as Respondent No. 4 has secured “Excellent” for these two
years and the petitioner because of these two ACRs could not
get marks higher than respondent No. 4 which has deprived the
petitioner to be promoted on the post of Joint Director in the year
2010 itself. The petitioner pursuing his grievances which have
been rectified in the year 2017 and despite this the respondents
have rejected the prayer of the petitioner for conducting review
DPC. This is nothing but arbitrariness on the part of respondents
No. 1, 2 and 3.
15. The respondents while rejecting the prayer for the review DPC
have relied upon Clause – 58 of Law and Procedure pertaining
to appointment and promotion which also provides the
contingency when review DPC can be held. This Clause further
provides that when the adverse ACRs have been expunged or
toned down, then also the review DPC should be conducted.
16. In the present case the ACRs of the petitioner were upgraded
which has removed the rider for not considering the promotion in
the DPC held in 2010, thus it was incumbent upon the
respondents to hold the review DPC. The contentions made by
the State that subsequently, the petitioner has been promoted
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therefore, the damage to the further prospect of the petitioner
has been rectified, is not logically correct submission on behalf
of the State as it is well settled position of service jurisprudence
that if a government servant is deprived of promotion when it is
due for promotion his future prospect may be affected adversely
to any extent without any fault of the government servant that
will also amount to injustice to the deserving eligible candidates
for promotion. The State has also taken stand that the
petitioner’s prayer are review DPC cannot be considered after
13 years, is also not acceptable as in the particular facts and
circumstances of the case that the petitioner is raising his
grievances from very inception in the year 2010 itself and his
grievances have been redressed on 24.10.2017. Thereafter, his
representation has been rejected on 06.04.2018, thus, the plea
of delay and latches is not available to the respondents. Even
otherwise, it is well settled position that the delay and latches for
claiming promotion has to be considered on its own facts and no
rigid formula can be applied. The Hon’ble Supreme Court in case
of Ramchandra Shankar Deodhar vs. State of Maharashtra
{(1974) 1 SCC 317} has held as under :-
“10. ………..It may also be noted that the principle on
which the Court proceeds in refusing relief to the petitioner
on ground of lashes ordeals is that the rights which have
accrued to others by reasons of the delay in filing the
petition should not be allowed to be disturbed unless there
is reasonable explanation for the delay. This principle was
stated in the following terms by Hidayatullah, C.J. in
Tilokchand v. H. B. Munshi(1) “The party claiming
Fundamental Rights must move the Court before other
rights come into existence. The action of courts cannot
harm innocent parties if their rights emerge by reason of
Page 10 of 13delay on the part of the person moving the Court.”
Sikri, J., (as he then was), also restated the same principle
in equally felicitous language when he said in’ S. N. Bose v.
Union of India(2) : “It Would be unjust to deprive the
respondents of the rights which have, accrued to them.
Each person ought to be entitled to sit back and consider
that his appointment and promotion effected a long time
ago would not be set aside after the lapse of a number of
years.” Here as admitted by the State Government in
paragraph 55 of the affidavit in repeal promotions that have
been made by the State Government area provisional and
the position has not been crystallised to the prejudice of the
petitioners. No rights have, therefore, accrued in favour of
others by reason of the delay in filing the petition. The
promotions being provisional, they have not conferred any
rights on hose promoted and they are by their very nature
liable to be set a : naught, if the correct legal position, as
finally determined, so reqiures. We were also told by the
learned counsel for the petitioners, and that was not
controverted by the learned counsel appearing on behalf of
the State Government, that even if the petition were
allowed and the reliefs claimed by the petitioners granted
to them, that would not result in the reversion of any
Deputy Collector or officiating Deputy Collector to the post
of Mamlatdar/Tehsildar; the only effect would be merely to
disturb their inter se seniority as officiating Deputy
Collectors or as Deputy Collectors. Moreover it may be
noticed that the claim for enforcement of the fundamental
right of equal opportunity under Art. 16 is itself a
fundamental right guaranteed under. Art. 32 and this Court
which has been assigned the role of a sentinel on the quay
dive for protection of the fundamental rights cannot easily
allow itself to be persuaded to refuse relief solely on the
jejune ground of laches, delay or the like.”
17. It is well settled position of law that though the promotion is not
fundamental right but right to consider for promotion is
fundamental right as held by the Hon’ble Supreme Court in case
of Union of India vs. Hemraj Singh Chauhan {(2010) 4 SCC
290} the Hon’ble Supreme Court has held as under :-
“35. The Court must keep in mind the Constitutional
obligation of both the appellants/Central Government as
also the State Government. Both the Central Government
and the State Government are to act as model employers,
which is consistent with their role in a Welfare State.
Page 11 of 13
36. It is an accepted legal position that the right of eligible
employees to be considered for promotion is virtually a
part of their fundamental right guaranteed under Article 16
of the Constitution. The guarantee of a fair consideration in
matters of promotion under Article 16 virtually flows from
guarantee of equality under Article 14 of the Constitution.
37. In The Manager, Government Branch Press and Anr.
vs. D.B. Belliappa – (1979) 1 SCC 477, a three judge
Bench of this Court in relation to service dispute, may be in
a different context, held that the essence of guarantee
epitomized under Articles 14 and 16 is “fairness founded
on reason” (See para 24 page 486).
38. It is, therefore, clear that legitimate expectations of the
respondents of being considered for promotion has been
defeated by the acts of the government and if not of the
Central Government, certainly the unreasonable in-action
on the part of the Government of State of U.P. stood in the
way of the respondents’ chances of promotion from being
fairly considered when it is due for such consideration and
delay has made them ineligible for such consideration.
Now the question which is weighing on the conscience of
this Court is how to fairly resolve this controversy.”
18. Considering the fact that downgraded ACR which has played
vital role in not granting promotion to the petitioner in year 2010
has been rectified by the respondent itself on 24.10.2017. The
case of the petitioner falls within the Category-a of
circumstances enumerated in Clause- 58 of Procedure for
Appointment, Seniority and Promotion instructions, thus, the
respondents should have conducted review DPC for promoting
the petitioner on the post of Joint Director in the year 2010.
Thus, the order dated 06.04.2018 (Annexure P/23) deserves to
be quashed and accordingly it is quashed.
19. The writ petition is allowed. It is directed that respondent No. 1 shall
conduct review DPC within two months from the date of receipt of copy of
this order and since this Court has already directed vide its order dated
09.08.2017 that the promotion of respondent No. 4 to the post of
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Additional Director will be subject to final outcome of this writ petition, it is
directed that now promotion of respondent No. 4 on the post of Additional
Director will be subject to outcome of review DPC to be conducted as per
the order of this Court.
20.With the aforesaid observation and direction the Writ Petitions is allowed.
Sd/-
(Narendra Kumar Vyas)
Judge
Deshmukh
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Head Note
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lfefr dh cSBd gsrq funsZf’kr fd;k tk ldrk gSA
The circumstances in which review DPC can be ordered
by this Court.
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