Kirtan Kumar Rathore Vs State of Chhattisgarh

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2024:CGHC:41042

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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WPS No. 4682 of 2020

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1 - Kirtan Kumar Rathore S/o Shri Same Lal Rathore, Aged About 39 Years R/o Village And Post Gatora, Police Station And Tahsil Masturi, District Bilaspur Chhattisgarh

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---- Petitioner

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versus

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1 - State Of Chhattisgarh Through Its Secretary, Department Of Home/ Police, Mahanadi Bhawan, Mantralaya, Police Staiton And Post Rakhi, Atal Nagar, New Raipur, District Raipur Chhattisgarh

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2 - Director General Of Police (D.G.P.) Police Headquarters (P H Q), Near Mahanadi Mantralaya, Police Station And Post Rakhi, Atal Nagar, New Raipur, District Raipur Chhattisgarh

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3 - Inspector General Of Police (I.G.P.) Office Of Inspector General Of Police (I G P), 32 Bungalow, Bhilai, District Durg Chhattisgarh

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4 - Assistant Inspector General Of Police (A I G P), Administration, Police Headquarters (P H Q), Near Mahanadi Mantralaya, Police Station And Post Rakhi, Atal Nagar, New Raipur, District Raipur Chhattisgarh

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---- Respondents ____________________________________________________________ For Petitioner : Mr. Sunil Otwani, Advocate For Respondents/State : Mr. Sabyasachi Choubey, Panel Lawyer

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Hon'ble Shri Justice Parth Prateem Sahu

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Order On Board

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17/10/2024

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Petitioner has filed this petition seeking following relief (s) :-

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Digitally signed by BALRAM PRASAD DEWANGAN Date: 2024.10.25 10:40:10 +0530

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“(i) That, this Hon’ble Court may kindly be pleased to direct the respondent authorities to produce all the relevant

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records relating to case of the petitioner before this Hon’ble Court for its kind perusal.

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(ii) That this Hon’ble Court may kindly be pleased to quash the impugned grading C mentioned in ACR of the petitioner by respondent No.1/Secretary, Department of Home/Police, Raipur, respondent No.2/DGP, PHQ, Raipur and respondent No.3/GP, Durg (C.G.).

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(iii) That, this Hon’ble Court may kindly be pleased to quash the impugned order dated 11.08.2024 (Annexure P/4) passed by respondent No.1/Secretary, Department of Home/Police, Raipur to the extent it maintains grading C of the petitioner in the ACR.

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(iv) That, this Hon’ble Court may kindly be pleased to quash the impugned order dated 3.10.2017 (Annexure P/6) passed by respondent No.1/Secretary, Department of Home/Police, Raipur rejecting the petitioner’s representation.

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(v) That, this Hon’ble Court may kindly be pleased to also quash the impugned review order dated 24.1.2018 (Annexure P/8) passed by respondent No.1/Secretary, Department of Home/Police, Raipur.

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(vi) That this Hon’ble Court may further be pleased to direct respondents to give suitable compensation to the petitioner for the mental trauma and agony, harassment and hardships suffered by him as also cost of the litigation.”

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Learned counsel for petitioner submits that petitioner was holding the post of Deputy Superintendent of Police in the year 2009-10. During this period of service, he was posted in District Durg from September, 2009 to March, 2010 for which Superintendent of Police, – Durg has recorded ACR of petitioner and has graded ‘A⁺ ’. ACR of petitioner was forwarded to the reviewing authority and reviewing authority has

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downgraded the grading awarded by the reporting authority from ‘A⁺ ’ to ‘C’. The grading awarded by the reviewing authority was affirmed by the accepting authority. ACR of the year 2009-10 though was adverse to petitioner, however, it was not informed him within the time framed as prescribed in the circular dated 29.11.1984. It is contention of learned counsel for petitioner that the adverse remarks made in the ACR of the petitioner downgrading him to ‘C’ was communicated to him only on 24.05.2013 after about more than 4 and half years. Petitioner after getting knowledge of downgrading the grade by reviewing authority has immediately submitted a representation on 04.07.2013, before respondent No.1. Respondent No.1 considered the representation and has expunged the adverse remark made by reviewing authority and affirmed by the accepting authority, however, has not upgraded the grading awarded by the reviewing authority and affirmed by the accepting authority. After getting communication from respondent No.1 of the decision on the representation, petitioner again submitted a representation on 27.07.2017 making prayer for upgrading the ACR from ‘C’. When no decision was taken, another representation was made by petitioner. It is contention of learned counsel for petitioner that vide order dated 24.01.2018 (Annexure P- 8), respondent No.1 rejected the representation mentioning that in view of the circular issued by the State Government dated 13.01.1999, it is not possible to upgrade the grading awarded by the reviewing authority and affirmed by the accepting authority. Decision taken by respondent No.1, is erroneous. He contended that respondent No.1 has wrongly applied the circular dated 13.01.1999 to the case of

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petitioner, where petitioner prayer is only for upgrading the ACR. Circular which is relied upon by respondent No.1 deals with when employee is to be considered for promotion by departmental promotion committee and it is not for when employee has made representation for up-gradation of his ACR after receipt of communication of adverse remarks. He contended that once the authorities come to the conclusion that adverse remark made was not called for and has expunged the adverse remark made in the ACR of the petitioner then up-gradation of the ACR/grade was consequential, and respondent No.1 ought to have upgraded the grading awarded by the reviewing authority and affirmed by the accepting authority.

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He also contended that the State government has clarified the position as to the effect of expunction of adverse remarks made by the reporting/reviewing or accepting authority vide circular dated 13.01.1999 bearing No.F-5-4/98/1/9 and submits that the grading awarded by the authority making adverse remark is also to be deleted, hence, when respondent No.1 has already decided the representation and expunged the adverse remarks, then the subsequent representation ought to have been accepted and allowed deleting the grading awarded by the reviewing authority and affirmed by the accepting authority.

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Learned State counsel though opposes the submission of learned counsel for petitioner, however, he submits that pursuant to the order passed by this Court on 08.05.2024, they have submitted relevant circular issued by the State Government time to time with respect to the communication of the ACR, expunction of the adverse remarks

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and its effect. He contended that in the circular dated 13.01.1999 there is specific mention with respect to the expunction of the adverse remark, that the grading awarded by the authority making adverse remarks against the officials/employees is also to be deleted. He submits that he is not disputing the submission of learned counsel for petitioner with respect to submission made based on the circular dated 13.01.1999.

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I have heard learned counsel for parties and perused the documents placed on record.

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Petitioner after receipt of adverse remarks, submitted representation before respondent No.1. It was allowed in part and communicated vide letter dated 11.08.2014, that adverse remarks are expunged. Relevant portion is extracted below for ready reference.

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mijksDr fo"k;karxZr vkids lanfHkZr vH;kosnu ij fopkj djus ds Ik’pkr o"kkZUr 31-03-2010 ds xksiuh; Ikzfrosnu esa leh{kd vf/kdkjh }kjk nh xbZ izfrdwy Vhdk foyksfir dh tkrh gSA

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Petitioner thereafter again submitted representation for upgrading the grade awarded in consequence of above order/decision.

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Grievance of petitioner in this writ petition is with respect to Annexure P-8 by which respondent No.1 has rejected the representation submitted by petitioner for upgrading the grade awarded in the ACR by reviewing authority and affirmed by the accepting authority. Relevant paragraph of the decision of respondent No.1 is extracted below for ready reference :-

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“3/ ्ቚकरण क� परिरशी�लन किकया� गया�। ቦኍ� क�्ቔ�न र�ठौ�र ቛኋ�र� सा�मा�न्या ्ቚशी�सान कि�भा�ग क� परिरप्ቔ कि�न� क 13.01.1999 क� आधा�र लिलया� गया� है%, जबकिक सा�मा�न्या ्ቚशी�सान कि�भा�ग न� अपन� परिरप्ቔ कि�न� क 16.06.1999 क� ቛኋ�र� प)�� मा* ज�र� परिरप्ቔ कि�न� क 13.01.1999 मा* क+ छ परिर�्ቔ�न किकए है%, ज. किनम्न�न+सा�र है%:-

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"सा�मा�न्या ्ቚशी�सान कि�भा�ग क� सा �किभा�्ቔ ሺኋ�पन ቛኋ�र� याहै स्प्ቖ किकया� गया� है% किक जब सा्ቌमा अलिधाक�र� ቛኋ�र� सा प)ण� ्ቚकि्ቔक) ल टी�प कि�ल.किप्ቔ करन� क� किनण�या लिलया� ज�्ቔ� है%, ्ቔब सा�मा�न्या्ቔ5 स्��क�रक्ቔ�� अलिधाक�र� ቛኋ�र� �� गई ቦኍ�ण� क. अ कि्ቔमा मा�न्या किकया� ज�एग�, परन ् + याकि� ्ቚकि�कि्ቖ क� क+ छ भा�ग बच्ቔ� है%, ्ቔ. उसाक� आधा�र पर मा)ल्या� कन कर ቦኍ�ण� कि�भा�ग�या प�.्ቐकि्ቔ साकिमाकि्ቔ ቛኋ�र� किनधा��रिर्ቔ क� ज��ग�।"

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4/ उपर.्ሹ ्ቚ��धा�न< क� ्ቔहै्ቔ ቦኍ� क�्ቔ�न र�ठौ�र क� �ቧኋ��न ् 31.03.2010 मा* कि�ए गए ቦኍ�ण� मा* किकसा� भा� ्ቚक�र क� परिर�्ቔ�न किकया� ज�न� सा भा� नहै> है?। अ्ቔ5 ቦኍ� क�्ቔ�न र�ठौ�र (र�प+सा�) ቛኋ�र� ्ቚस ् +्ቔ प+नकि��ल.कन अभ्या�� न किनरस ् किकया� ज�्ቔ� है%।"

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From bare perusal of the aforementioned extract, it is apparent that the circular which is applied, is dated 16.06.1999 and further considering the relevant extract which was considered by the authority i.e. respondent No.1, it is appearing that the Circular No. is F-5-4/98/9/1 dated 13.01.1999. The heading of the circular is that when there is difference of opinion in the ACR. For better understanding the object of the issuance of the circular and the stage for its consideration I find it appropriate to extract the said circular which is dated 16.06.1999 which is as under :-

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**fo"k;&xksiuh; pfj=koyh esa erkaduA

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lanHkZ& lk-iz-fo- dk Kki- dz- 580@2982@94@9@,d] fn- 6-9-94 ,oa lk- iz-fo- dk Kki dz- ,Q-5&4@98@9@1] fn- 13-1-99A

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lkekU; iz’kklu foHkkx ds lanfHkZr Kki }kjk ;g Li"V fd;k x;k gS fd tc l{ke vf/kdkjh }kjk lEiw.kZ izfrdwy Vhi foyksfir djus dk fu.kZ; fy;k tkrk gS] rc lkekU;r% LohdkjdrkZ

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vf/kdkjh }kjk Lohdkj dh xbZ Js.kh dks vafre ekU; fd;k tk;sxk] ijUrq ;fn izfo"V dk dqN Hkkx cprk gS] rks mlds vk/kkj ij ewY;kadu dj Js.kh foHkkxh; inksUurh lfefr }kjk fu/kkZfjr dh tk;sxhA

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2- 'kklu ds le{k dqN ,sls izdj.k vk;s gSa] ftuesa ;g tkudkjh pkgh xbZ gS fd ;fn 'kkldh; lsodksa ds xkiuh; izfrosnu esa izfrosnd vf/kdkjh }kjk vafdr Js.kh ls leh{kd ;k Lohd`rdrkZ vf/kdkjh }kjk vlefr O;Dr dj fuEu Js.kh dk er fn;k gks] rks ,slh fLFkfr esa dkSu ls Js.kh Lohdkj dh tk,xhA

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3- xksiuh; izfrosnu esa oxhZdj.k ds vk/kkkj ij 'kkldh; lsod dh inksUufr ds lECkU/k esa fopkj fd;k tkrk gSA inksUufr ds ekeyksa esa foHkkxh; inksUufr lfefr }kjk 'kkldh; lsod ds fiNys o"kksZ ds xksiuh; izfrosnu ij fopkj dj vu’kalk dh tkrh gSA ;fn fdlh xksiuh; izfrosnu esa fojks/kkHkklh izfof"V;ka gks] rks mu ij fopkj dj vafre ewY;kadu djus dk nkf;Ro ,oa vf/kdkj inksUufr lfefr dk gSA vr% inksUufr ¼dzeksUufr Hkh½ ds ekeyksa esa foHkkxh; inksUufr lefr }kjk fu/kkZfjr Js.khdj.k gh vafre :i ls ekU; fd;k tkuk pkfg,A

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¼lkekU; iz’kklu foHkkx dzekad 5&4@98@9@,d] fnukad 16-6-1999½**

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On consideration of the entire contents of the circular it is apparent that it has been issued to remove the anomaly while considering the candidature of an employee for promotion by the DPC as to which grading is to be considered when available in the ACR of an employee differently awarded by the reporting authority, reviewing authority or the accepting authority.

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The said circular in the opinion of this Court will not be applicable to the facts of the case where petitioner submitted representation seeking up-gradation in the ACR based on the communication of adverse entries made in the ACR, more so when petitioner submitted representation after receipt of the communication of adverse entry, was partly allowed by respondent No.1 and expunged the adverse remark made by the authority.

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It is not the case that respondent No.1 has out-rightly rejected the subsequent representation of the petitioner on merits, however, the rejection of the representation is only on the ground that in view of the circular dated 16.06.1999 (wrongly mentioned as 13.01.1999), the upgradation is not permissible.

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Effect of expunction of adverse remarks in ACR of an employee is clarified in circular dated 13.1.1999. Relevant portion of the circular is extracted below for ready reference :-

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2tc l{ke vf/kdkjh }kjk izfrdwy Vhi foyksfir djus dk fu.kZ; fy;k tkrk gS rc foyksfir Vhi dks dkVdj vFkok dkxt fpidkdj feVk nh tkuh pkfg, ,oa ftl vkns’k ls foyksfir d;k x;k gS ml vkns’k dk dzekad ,oa fnukad ogka ntZ dj nsuk pkfg;sA tc l{ke vf/kdkjh }kjk iwjh izfrdwy Vhi foyksfir djus dk fu.kZ; fy;k tkrk gS rc xksiuh; pfj=koyh esa izfrdwy VhidrkZ }kjk vafdr Js.kh Hkh foyksfir dj nh tk;sA

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From perusal of the above extracted para, it is clear that the Department of General Administration Department of State Government categorically mentioned that when the competent authority has taken decision to expunge the entire adverse remarks then the grading recorded by the authority recording adverse remark is also to be deleted.

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The decision of respondent No.1 rejecting representation on the aforementioned ground is erroneous as the respondent No.1 has relied the circular which was not applicable to the facts of the case.

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For the forgoing discussion, the communication of the decision dated 24.01.2018 of respondent No.1 is not sustainable and it is accordingly

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set-aside. Respondent No.1 is directed to re-consider the representation submitted by petitioner for up-gradation of his grading afresh keeping in mind the circular bearing No. F-5-4/98/1/9 dated

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13.01.1999, which is stated to be applicable.

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The exercise of reconsideration of representation of petitioner shall be completed within period of eight weeks from the date of receipt of order.

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Accordingly, this petition is allowed.

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Sd/(Parth Prateem Sahu) Judge

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Balram

Kirtan Kumar Rathore v. State of Chhattisgarh

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What is this about?

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Kirtan Kumar Rathore v. State of Chhattisgarh

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