Dr. Smt. N. K. Gandhi W/o Dr. B. S. Gandhi Aged About 64 Years v. 1. State Of Chhattisgarh Through The Principal Secretary, Ministry Of Health And Family Welfare
Case Details
1 2025:CGHC:8632 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 3393 of 2015 Dr. Smt. N. K. Gandhi W/o Dr. B. S. Gandhi Aged About 64 Years R/o D- 56 Secter -1 Devendra Nagar, Police Station Devendra Nagar, Tehsil And District Raipur, Presently Posted As Professor Cum Director, And Technical Advisor, Directorate Of Medical Education, Chhattisgarh, Raipur C. G., Chhattisgarh ... Petitioner versus 1. State Of Chhattisgarh Through The Principal Secretary, Ministry Of Health And Family Welfare Department, Mahanadi Bhawan, New Raipur C. G., Chhattisgarh 2. 3. The Public Service Commission, Raipur, Chhattisgarh, District : Raipur, Chhattisgarh Dr. A. K. Chandrakar, Present Address Dean, Pt. J. N. M. Medical College, Raipur Chhattisgarh, District : Raipur, Chhattisgarh. 4. Dr. R. K. Singh, Present Address Dean Govt. Medical College, Ranjnandgaon Chhattisgarh, District : Rajnandgaon, Chhattisgarh. 5. Dr. Vishnu Datt, Present Address Dean, Chhattisgarh Institute Of Medical Sciences C I M S, Bilaspur Chhattisgarh, District : Bilaspur, Chhattisgarh. 6.
Legal Reasoning
Dr. U. S. Paikra, Present Address Dean, Late Shri Baliram Kashyap Memorial Medical College, Jagdalpur Chhattisgarh, District : Bastar(Jagdalpur), Chhattisgarh. 7. Dr. P. M. Luka, Present Address Dean, Govt. Medical College, Ambikapur Chhattisgarh, District : Surguja (Ambikapur), Chhattisgarh. ... Respondents For Petitioner For Respondent/State For Respondent No.4 : : : Shri Arvind Shrivastava, Advocate Shri Abhishek Singh PL Shri Harsh Dave Advocate on behalf of Shri Pawan Kesharwani Advocate. (Order on Board by Hon’ble Shri Justice Sachin Singh Rajput) (19/02/2025) The petitioner has sought for the following reliefs in this petition:- “10.1 To set aside impugned promotion order dated 16.06.2015 (Annexure P-1) 10.2 To give promotion to the petitioner to the post of Dean and place at Sr. No.1 as Dean above the name of respondent No.3 (Dr. A.K. Chandrakar) and/or 2 10.3 Any other relief(s)/order(s)/direction(s) in favour of the petitioner, which may deem fit and proper in the facts and circumstances of the case and in the interest of justice. 10.4 Cost of the petition.” 2. Facts of the case in brief are that the petitioner at the relevant point of time was working as Professor-cum-Director and Technical Advisor, Directorate of Technical Education, Raipur. Meeting of Departmental Promotion Committee (DPC) was convened on 27.05.2015 for promotion to the post of Dean in Government Medical Colleges from that of the Director-cum-Professor. 09 persons including the petitioner were there in the zone of consideration for promotion to the post of Dean. The DPC found the petitioner to be unfit on account of the assessment of her benchmark as “Good” and therefore her case for promotion to the said post was not considered. As a result of the recommendations of the DPC, respondent Nos. 3 to 7 were promoted to the post of Dean in various medical colleges vide order dated 16.06.2015 (Annexure P-1), and this action of the State is under challenge in this petition. 3. Learned counsel for the petitioner submits that though the petitioner was at S.No.1 in the overall gradation list of Professor-cum-Director, in the meeting of DPC convened on 27.05.2015 the Annual Confidential Report (“ACR” for short) of the candidates falling in the zone of consideration for the years 2010 to 2015 was taken into consideration. He submits that in the ACR for the year 2014, the petitioner was awarded the grading – “Ga” which became the reason for treating her as unfit for promotion, however, this grading was not communicated her, which deprived her of the valuable right to make representation against such adverse entry. He submits that the petitioner is working since the year 1977 with an unblemished service career. It is submitted that no Departmental Enquiry (DE) was ever conducted against the petitioner and that on account of non communication of the adverse grading “Ga” for the year 2014 and thus depriving her of her valuable right of making
Decision
representation against that, the impugned order is liable to be struck down in view of the judicial pronouncement of the Supreme Court in the matter of Dev Dutt v. Union of India and others reported in (2008) 8 SCC 725. 3 4. On the other hand, learned counsel for the respondent/State oppose the submissions made by learned counsel for the petitioner. Shri Singh submits that in the light of Chhattisgarh Medical Education (Gazetted) Service Recruitment Rules, Chhattisgarh Public Service (Promotion) Rules, 2003 and Promotion Rules, 2008, the benchmark for promotion was “very good” and as the DPC after assessment of the records of the petitioner including the ACR, assessed the benchmark of the petitioner to be “good”, she was not found fit for promotion to the post of Dean. He submits that several complaints were made against the petitioner which have been filed along with the return which go to show that the petitioner was not entitled for promotion. She submits that since the assessment of the record of the petitioner was not found upto the benchmark as prescribed under the Rules mentioned above, there is no illegality committed by the State in passing the impugned order. He submits that by efflux of time the petitioner has been superannuated and therefore she cannot be given any promotion. Shri Dave appearing for respondent No.4 adopts the arguments of learned State counsel. 5. 6. Heard counsel for the parties and perused the documents available on record. There is no dispute that the meeting of the DPC was convened on 27.07.2015 in which name of the petitioner was in the zone of consideration. There is no dispute that the petitioner stood at S.No.1 in the gradation list. According to the Rules of 2013 the benchmark for promotion to the post of Dean has to be very good and the principle of merit- cum-seniority to be considered by assessing the benchmark of the persons falling in the zone of consideration. Perusal of the minutes of the DPC would indicate that the minimum benchmark was required to be assessed in the following manner:- (A) Minimum benchmark:- The committee has fixed the following benchmarks for the promotion under consideration- (1) Integrity should be beyond doubt and the candidate should have submitted the description of the immovable property acquired in the last five years. (2) The minimum overall assessment of the ACR for five years should be “very good” and it should not be of “Gha” grading and there should not be any adverse entry for even a year. For the promotion on the basis of merit-cum- 4 seniority normally the minimum benchmark should be “very good” (minimum marks 13). (3) Out of 05 years duration, the last year’s ACR should compulsorily be available, which should have the minimum grading of “good (Kha)” (B) On the basis of five year ACRs, the Committee made the assessment and recommendations in the following manner:- S.No.Officer’s name Category Roster point No. Overall Committee’s 1. 2. 3. 4. 5. 6. 7. 8. 9. Dr. (Smt.) N.K. Gandhi Unreserved Unreserved Dr. A.K. Chandrakar Dr. R.K. Singh Unreserved Dr. (Smt.) Abha Singh Unreserved Dr. Vishnu Datt Dr. A.S. Dau SC ST Dr. U.S. Paikra Dr. P.M. Luka Dr. Shashank Gupta ST ST Unreserved - 03 05 - 04 - 02 06 - assessment recommendati Good Very good Very good Very good Very good - Very good Very good Very good on Not suitable Suitable Suitable - Suitable On account of death not considered Suitable Suitable - A note has been appended indicating that while considering the case of the petitioner for promotion, ACRs from the year 2010 to 2014 were examined and that the self assessment made by the petitioner was accepted by the accepting authority, and therefore, there was no possibility of change of grading given to her, and therefore she was not found suitable for promotion. 7. The record does not reflect that grading “Ga” given to the petitioner for the year 2014 was communicated to her within a reasonable period of time. A pointed query was made from the counsel for the petitioner in this regard but he is not in a position to substantiate as to when the ACR for the year 2014 was communicated to the petitioner. The benchmark for promotion to the post of Dean was fixed as very good. From the perusal of the minutes of the DPC dated 27.05.2015 it only appears that only the ACR for the year 2010 to 2014 was taken into consideration and according to the self assessment letter and the remark made against the petitioner by the accepting authority, there was no possibility of any change in her ACR. Perusal of document of Annexure R-5 clearly indicates that for the year 2010 to 2013 the ACR of the petitioner was (ka-A), and for the year 2014 it was (Ga-C). Since 5 grading (Ga-C) was awarded to the petitioner for the year 2014, after making overall asessment the benchmark fixed for the petitioner was found to be good, which was below the benchmark “very good”. Clause 3 of minimum benchmark of last 5 years, the minimum grading in the ACR should be (good-Kha) and this led to the decision of the DPC to find the petitioner as unfit for promotion. 8. From the facts and circumstances of the case it is evident that grading Ga-C was not communicated to the petitioner within a reasonable period of time enabling her to make representation there-against. The issue of non-communication of ACR and has been settled in the case of Dev Dutt (supra) where it has been held as under:- 17. In our opinion, every entry in the A.C.R. of a public servant must be communicated to him within a reasonable period, whether it is a poor, fair, average, good or very good entry. This is because non-communication of such an entry may adversely affect the employee in two ways : (1) Had the entry been communicated to him he would know about the assessment of his work and conduct by his superiors, which would enable him to improve his work in future (2) He would have an opportunity of making a representation against the entry if he feels it is unjustified, and pray for its upgradation. Hence non-communication of an entry is arbitrary, and it has been held by the Constitution Bench decision of this Court in Maneka Gandhi vs. Union of India (supra) that arbitrariness violates Article 14 of the Constitution. 18. Thus it is not only when there is a bench mark but in all cases that an entry (whether it is poor, fair, average, good or very good) must be communicated to a public servant, otherwise there is violation of the principle of fairness, which is the soul of natural justice. Even an outstanding entry should be communicated since that would boost the morale of the employee and make him work harder. 38. We, however, make it clear that the above directions will not apply to military officers because the position for them is different as clarified by this Court in Union of India vs. Major Bahadur Singh 2006 (1 SCC 368. But they will apply to employees of statutory authorities, public sector corporations and other instrumentalities of the State (in addition to Government servants). 9. Following this judicial pronouncement in the case of Sukhdev Singh v. Union of India and others reported in (2013) 9 SCC 566, where it has been held as under:- “8. In our opinion, the view taken in Dev Dutt that every entry in ACR of a public servant must be communicated to him/her within a reasonable period is 6 legally sound and helps in achieving threefold objectives. First, the communication of every entry in the ACR to a public servant helps him/her to work harder and achieve more that helps him in improving his work and give better results. Second and equally important, on being made aware of the entry in the ACR, the public servant may feel dissatisfied with the same. Communication of the entry enables him/her to make representation for upgradation of the remarks entered in the ACR. Third, communication of every entry in the ACR brings transparency in recording the remarks relating to a public servant and the system becomes more conforming to the principles of natural justice. We, accordingly, hold that every entry in ACR – poor, fair, average, good or very good – must be communicated to him/her within a reasonable period.” (Emphasis supplied) 10. In the light of the above settled legal position it is clear that every entry either in favur of the employee or otherwise must be communicated to him within a reasonable period of time. In the absence of any document to show that the ACR of the petitioner for the year 2014 was communicated to the petitioner, this Court is unable to hold that such a communication was ever made to the petitioner. On account of such non-communication, the petitioner has been deprived of her valuable right to make representation against the adverse entry for the year 2014. Had it been communicated, there was every possibility of consideration of her case for promotion to the post of Dean by the DPC. Learned State counsel tried to persuade this Court that several complaints were made against the petitioner and an enquiry against her was conducted. However, the State counsel is not in a position to substantiate from the return filed by the State that any enquiry much less the departmental enquiry was conducted against the petitioner. On the contrary, the petitioner in paragraph No. 8.3 of the petition has stated that she had an unblemished service career and no enquiry as stated by the State counsel was every conducted against her. Though the State counsel submits that certain complaints were made against the petitioner and an enquiry was conducted against her, barring copies of certain complaints, he has not filed any document pertaining to the enquiry conducted and as to the result thereof. During the pendency of this writ petition, the petitioner has been superannuated on 30.06.2016. In the case of Dev Dutt (supra) also the petitioner therein was superannuated and the Supreme Court paragraph Nos. 43 and 44 has held as under:- 7 43. We are informed that the appellant has already retired from service. However, if his representation for upgradation of the `good' entry is allowed, he may benefit in his pension and get some arrears. Hence we direct that the 'good' entry of 1993-94 be communicated to the appellant forthwith and he should be permitted to make a representation against the same praying for its upgradation. If the upgradation is allowed, the appellant should be considered forthwith for promotion as Superintending Engineer retrospectively and if he is promoted he will get the benefit of higher pension and the balance of arrears of pay along with 8% per annum interest. 44. We, therefore, direct that the 'good' entry be communicated to the appellant within a period of two months from the date of receipt of the copy of this judgment. On being communicated, the appellant may make the representation, if he so chooses, against the said entry within two months thereafter and the said representation will be decided within two months thereafter. If his entry is upgraded the appellant shall be considered for promotion retrospectively by the Departmental Promotion Committee (DPC) within three months thereafter and if the appellant gets selected for promotion retrospectively, he should be given higher pension with arrears of pay and interest @ 8% per annum till the date of payment. 11. Case of petitioner is fully covered with the decision of the Supreme Court in the matter of Dev Dutt (supra), and therefore, the petition is disposed of in the following terms:- “As the petitioner has already retired from service, the 'Ga' grading for the year 2014-15 be communicated to her within 30 days from the date of receipt of this order and she should be permitted to make a representation against the same praying for its up-gradation within a period of 60 days from the date of such communication. If the up-gradation for the year 2014-15 is allowed, the petitioner shall be considered for promotion retrospectively by the Departmental Promotion Committee (DPC) within three months thereafter. Thereupon, the petitioner should also be given higher pension with arrears of pay and interest @ 6% per annum till the date of payment.” 12. 13. Petition thus disposed of. No cost. Jyotishi Sd/- (Sachin Singh Rajput) Judge 8