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2004 DIGILAW 777 (MP)

Badrilal v. State of M. P.

2004-09-20

N.K.MODY

body2004
ORDER N.K. Mody, J. Petitioner by Shri Atul Shridharan, Adocate. Respondents Nos. 1 to 4 by H.Y. Mehta, Panel Lawyer. Heard finally. 1. The facts of the case are that the petitioner and respondent No. 5 were appointed as Accountant on 1-9-1996 i.e. gradation list Annexure-P/1 in which the petitioner's name was shown at serial No. 6 and the name of the respondent No. 5 was shown at serial No. 7. Vide order dated 19-5-2004 Annexure-P/8 the respondent No. 5 has been promoted. Aggrieved by this, petitioner has filed the present petition wherein it is alleged that the respondent No. 5 was junior to -the petitioner and petitioner's case has not been considered though petitioner is eligible for promotion. 2. Respondents No. 1 to 4 submitted the reply as per rules 'seniority is subject to fitness' for the post of Class-Ill and Class-IV employees. Further contention of the respondents No. 1 to 4 is that the petitioner was working as Accountant with effect from 30-1-1986 and respondent No. 5 was working as Accountant since 3-3-1986 but according to rules only seniority was not criteria for promotion, but the same is seniority subject to fitness. It was further alleged that after the promotion orders were issued on the basis of D.P.C. held by the department on 8-4-2004 and on recommendations of the aforesaid D.P.C. the impugned promotion orders were issued by the Conservator of Forest, Indore/respondent No. 3. It was further contended that since the respondent No. 5 was found fit for promotion, hence, he was promoted. It was also alleged that no departmental enquiry is pending against the respondent No. 5 and respondent No. 5 obtained more marks in his last 5 years A.C.R. than the petitioner. It was further prayed that the petition have to be dismissed. 3. Learned Counsel for the petitioner submits that it is not disputed that the petitioner is senior to the respondent No. 5. He placed reliance on the decision reported in (1998) 6 SCC 720 B. V. Sivaiah and others vs. K. Addanki Babu and others wherein Hon'ble the Supreme Court has observed as under :- 18. 3. Learned Counsel for the petitioner submits that it is not disputed that the petitioner is senior to the respondent No. 5. He placed reliance on the decision reported in (1998) 6 SCC 720 B. V. Sivaiah and others vs. K. Addanki Babu and others wherein Hon'ble the Supreme Court has observed as under :- 18. We thus arrive at the conclusion that the criterion of "seniority-cum-merit in the matter of promotion postulates that given the minimum necessary merit requisite for efficiency of administration, the senior, even though less meritorious, shall have priority and a comparative assessment of merit is not required to be made. For assessing the minimum necessary merit, the competent authority can lay down the minimum standard that is required and also prescribe the mode of assessment of merit of the employee who is eligible for consideration for promotion. Such assessment can be made by assigning marks on the basis of appraisal of performance on the basis of service record and interview and prescribing the minimum marks which would entitle a person to be promoted on the basis of seniority-cum-merit. 4. It is pertinent to note that no rules have been filed by the respondents to find out the criteria for promotion. As per rules is seniority subject to fitness for the post of Class-Ill and Class-IV employees. Similarly, there is no documentary evidence on record to show that the petitioner was having lesser marks than the respondent No. 5 in his last 5 years A.C.R. 5. In view of the facts and circumstances of the case and also the law laid down by Hon'ble the Supreme Court, this petition is allowed with a direction to the respondent No. 2 to issue the order of promotion of the petitioner and place the petitioner on appropriate place with all consequential benefits. It is further directed to respondent No. 2 to hold special D.P.C. for the promotion of the petitioner within a period of two months from today. 6. With the aforesaid observations, this petition is allowed. No order as to costs.