G. Chitre, J.

1. This petition is being decided finally at motion hearing stage in the interest of justice and in the interest of public at large with consent of the parties and their counsel. All of them have been heard. Annexures have been also considered. Apart from that, the record in respect of the meeting held by the D.P.C. on 16-3-99 was considered. The ACR Rolls pertaining to concerned years were also perused. Shockingly it was found that the ACR Sheet in respect of respondent No. 3 Shri Musheer Ahmed pertaining to year 1997-98 was totally blank so far as the remarks written by the Assessing Officer were concerned. The verifying officer had endorsed that respondent No. 3 was working in Public Relation Department and nothing more.

2. In view of that blank sheet which was acted on in the process of promotion by the D.P.C., this court felt that it was necessary to call the members of the said D.P.C. as well as the Commissioner for the purpose of understanding their say in this respect. The Chairman and members of the D.P.C. submitted that they found some sheets blank and, therefore, they took a decision that in such cases the ACRs pertaining to immediately past three years should be considered and in view such resolution of processing, they considered the ACR Rolls pertaining to immediately three past years so far as Musheer Ahmed respondent No. 3 was concerned. So far as the petitioner Ratanlal Sharma was concerned the same decision was taken by them. On query they were unable to point out any support to their said hypothesis from any law, rule and bye-law. It seems to be the decision taken by the members of the D.P.C. by a common understanding.

3. In this context the guidance given by State of M.P., in respect of writing the ACR Rolls of government servants, semi-government servants was read out to this Court. In that context also the sheets of ACRs were perused.

4. The Chairman of D.P.C. Shri J.C. Galar, then Dy. Commissioner, Municipal Corporation, Ujjain (presently working as Dy. Commissioner in Municipal Corporation, Indore) pointed out a book written by Shri N.H. Siddique Superintendent (Rtd.), Water Resources Deptt. M.P., which quoted memorandum issued by General Administration Department of State of M.P. bearing No. 2357/1842/1/3/65 dated 19-11-65, which gives the guidance to the concerned officers for writing the ACRs. Though the members of D.P.C. acted on such guidance, though the Municipal Corporation, Ujjain acted on such guidance it seems that they committed the error in understanding the spirit behind the said memorandum. There is no alternative but to say this way after seeing the sheets which are being used for writing ACRs and the blank sheets which have been seen which were brought before the D.P.C. in question. It has been mentioned by the State of M.P. that it has been noticed by the State that the concerned officers do not write the ACRs properly. In number of cases the report are vague which do not reflect proper assessment about the ability, personality, character and integrity of the officer whose ACR is being written. The State of M.P. had issued number of instructions in that context. However, even then the State of M.P. found that there was no proper implementation of the instruction given and therefore, by the memorandum mentioned above, again the State of M.P. instructed its officers to keep it in mind that the ACRs should not be vague in nature like "satisfactory", "Average" and "Above Average". The State Govt. found that these words are likely to create different meanings and, therefore, the persons about whom the ACRs are to be written are likely to suffer, therefore, the State decided to instruct, that such words should not be used because they create impediment in the case of promotion causing serious prejudice to the concerned person who is to be considered for the purpose of promotion. The State of M.P. also though it proper to instruct the officers that if any officer did not have the opportunity of observing the performance of the incumbent he should write frankly in that way instead of using the vague and dodging the responsibility.

5. ACRs should be giving a neat picture of the officer or the incumbent who is likely to be promoted or demoted or not considered for promotion and that depends upon the acts which he is supposed to do in the office where he is working. A person may be religious in his habits but that would not be by itself entitling him to earn the promotion if he neglects his official work, if he wastes the time which is required for doing the official work such activities would not be entitling him to earn good appreciation of his work so far as the official duty is concerned. Majority of the government servants are to act or react in context with public at large. Therefore, their behaviour in respect of members of public with whom they have to deal with, their behaviour with their superiors, colleagues and their subordinates would be important factors to be considered. Their dedication to their duty would be also significant aspect. Punctuality, desire and habit to obey the instructions of the superiors and to give guidance to the subordinates would also be an important criteria. In addition to that, the speed of disposing of the work assigned to him would be a relevant factor to be considered Dedication to work assigned has to be considered. Seldom these factors are written in the ACRs and, therefore, not only this government but other governments are also required to issue such instructions in the larger interest of public at large.

6. Many officers are in the habit of writing "Average" or similar words. Such words are neither treated as adverse remarks as it is noticed and are not conveyed to the incumbents. However, they are treated as impediments and disqualification for earning the promotions. Therefore mischievousness if at all in such type of cases causes a serious prejudice to the incumbent and on many occasions he gets himself ruined on account of not being considered for promotion on account of such feeble, weak or mischievous remarks. Does it stand to the rule of natural justice? In the democracy every person is entitled to have equality for being considered for promotions. In the democracy, every citizen is entitled to have the opportunity of being promoted by showing his performance. It gets indirectly infringed on account of such mischievous remarks and they are robbed off the rights which are guaranteed by our Constitution. Somewhere it has to be corrected and somebody has to do it for the purpose of removing the injustice to number of persons who get themselves ruined by such casual or mischievous A.C.R. remarks. Some of them are bold enough and eloquent to raise the voice against such improper treatment given to them, but majority is of destimutes who do not have the eloquent voice spoken by the stronger tongues through lips.

7. When this is the situation, now the court will have to come forward for the purpose of administration of justice in proper way and this is the opportunity to express it while deciding this writ petition.

8. Shri Musheer Ahmed, as state by Shri Vijayvargia, was promoted by seeing his previous ACRs. If that was so, then why Ratanlal Sharma was not promoted? The answer which was given by Municipal Corporation, Ujjain and its officers, was that they followed the rule of 'merit-cum-seniority'. Where the person is to be promoted to a post which does not require skill, technical skill, technical knowledge etc., the rule of natural justice indicates that the person who has served for number of years should not be returned from the doors of promotion on flimsy grounds. The rule should be 'seniority-cum-merit' in such cases. The years spent in service has to be given its due weightage. Unfortunately, the D.P.C. in question did not notice the spirit behind the work which they were to do in the D.P.C. which has been questioned by this writ petition.

9. The way which has been followed by the D.P.C. was not sound and principles of law and natural justice were not followed. Shri Musheer Ahmed has been promoted but petitioner Ratanlal Sharma has not been. The equality between them has been unreasonably shattered infringing the right of petitioner Ratanlal Sharma at least. Apart from this, the procedure which has been followed by the D.P.C. in question cannot be treated to be proper and legal. Therefore, this court issues writ of certiorari and mandamus in favour of the petitioners quashing the said decisions taken in the said D.P.C. and directing the Commissioner, Municipal Corporation, Ujjain to take necessary legal steps for the purpose of forming a new D.P.C. for the purpose of processing the work of promoting the incumbents who can legally be considered for promotion. In that context, a decision should be taken consistent with the law, consistent with the fundamental rights guaranteed by the Indian Constitution, relevant law, relevant rules and relevant bye-laws. The said D.P.C. should be held as early as possible and within two months, at least from the date of receipt of this order. Before that the incumbents about whom no ACRs have been written, should be assessed so far as their official performance is concerned in view of the points mentioned above in this judgment/order. A proper way has to be found out by the Commissioner, Municipal Corporation, Ujjain keeping pace with the law, rules and bye-laws.

10. The remarks in respect of Shri Ratanlal Sharma and Shri Musheer Ahmed in this judgment should not weigh in any way in the process of promotion and the decision which are to be taken by the D.P.C.

11. This all is a storm within the world of Municipal Corporation, Ujjain. Therefore, for the purpose of maintaining cordial relations amongst all of them, this court passes no order as to cost.

12. The ACRs called for perusal of this court, have been returned to Shri Shekhar Verma, Commissioner, Municipal Corporation, Ujjain and Shri Vijayvargia, counsel appearing for respondent No. 1 Municipal Corporation, Ujjain.