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Madhya Pradesh High Court · body

2005 DIGILAW 24 (MP)

Sushila Pardhi v. State of M. P.

2005-01-04

A.K.SHRIVASTAVA

body2005
ORDER A.K. Shrivastava, J. 1. The original petitioner was Indra Kumar Pardhi who died during the pendency of this petition and present petitioner Smt. Sushila Pardhi is the widow and who has been brought on record as legal representative. For the sake of convenience, in this judgment deceased Indra Kumar Pardhi is denoted as petitioner. 2. By this petition, the petitioner has sought relief for the consideration of his name for promotion to the post of Ayurvedic Medical Officer with a further direction that his name may be included in promotion order Annexure A/3 dated 18-1-1994 by modifying the said order. 3. In brief the case of petitioner is that he was appointed as "Vaidya" B Grade on 31-10-1975 in the pay-scale of Rs. 195-330. The nomenclature of this post later on changed and now it is being called as "Assistant Ayurvedic Medical Officer" and he is serving on this post for last 18 years without giving any promotion to him. On 1-4-1992 the gradation list was published in which petitioner's name appeared at serial No. 24 and the co-employees who are at par with the petitioner are also included in the said list. According to the petitioner, similarly situated co-employee have been promoted to the post of Ayurvedic Medical Officer. 4. The contention of Shri D. S. Thakur, Learned Counsel is that the employees who were junior to petitioner have been promoted on 25-1-1994, however, on account of arbitrary action of respondents, the petitioner was not promoted. The contention of Learned Counsel is that as per rules, namely, M.P. (Indian Systems of Medicine and Homeopathy) Class III Ministerial Service Recruitment Rules, 1987 (hereinafter referred to as 'the rules') are applicable to the petitioner and the schedule 2 of the said rules prescribes promotion to the post of Ayurvedic Medical Officer 60% by direct recruitment by means of selection interview test and 40% by promotion. The petitioner is claiming for promotion under 40% quota. The criteria for promotion is seniority-cum-merit. In the IVth Schedule of M.P. Public Health (Indian System of Medicine and Homeopathy (Gazetted) Recruitment Rules 1987 (hereinafter referred to as the 'Gazetted Recruitment Rules of 1987, the feeder post is Assistant Ayurvedic Medical Officer. The petitioner is claiming for promotion under 40% quota. The criteria for promotion is seniority-cum-merit. In the IVth Schedule of M.P. Public Health (Indian System of Medicine and Homeopathy (Gazetted) Recruitment Rules 1987 (hereinafter referred to as the 'Gazetted Recruitment Rules of 1987, the feeder post is Assistant Ayurvedic Medical Officer. According to the schedule, the candidates who had experience as Assistant Ayurvedic Medical Officer are competent to be promoted to the said post in the manner prescribed in Rules 13 and 14 of the Gazetted Recruitment Rules of 1987. According to Rule 13, the DPC consists of members mentioned in schedule IV for making selection and in the said schedule Director, ISM and H and Member, should be the persons to constitute the DPC which shall recommend the promotions. According to the Learned Counsel though petitioner was entitled for promotion, however, he had not been promoted and thus respondents may be directed to consider the case of his promotion. 5. Refuting the submission of Learned Counsel for petitioner, it has been contended by Shri A. P. Shroti, Learned Counsel appearing for the respondents that the petitioner was considered for promotion to the post of Medical Officer Ayurved. The DPC fixed certain norms and conditions, according to which there should be in all three 'Good' or above then 'Good" CR and last two years CR must be 'Good' or above. Looking to the criteria fixed by the DPC, the petitioner was not found fit since neither the three years nor two year CR of the petitioner was found up to the mark, and, therefore, the petitioner was not found eligible for promotion. In the return, it has also been stated that 3 years CRs of petitioner is 'Average' and, therefore the CR has not been communicated to the petitioner. On these premised argument, it has been contended by Learned Counsel for the State that petitioner was rightly not promoted and the action cannot be said to be arbitrary. In support of his contention, Learned Counsel for the State has placed reliance on B. V. Sivaiah and others etc. vs. K. Addanki Babu and others etc., AIR 1998 SC 2565 . 6. In support of his contention, Learned Counsel for the State has placed reliance on B. V. Sivaiah and others etc. vs. K. Addanki Babu and others etc., AIR 1998 SC 2565 . 6. In reply, it has been contended by Shri Thakur that according to the respondents' own showing, the DPC could not find petitioner to be fit for promotion because he was having three 'Average' ACRs and since those ACR were 'Average' they were not communicated to the petitioner. The contention is that on account of uncommunicated Average ACRs, the promotion cannot be denied. In support of his contention, Learned Counsel has placed reliance on M.P. Rajasekhar vs. State of Karnataka and another, (1996) 10 SCC 369 ; Jagat Narayan Tiwari vs. State of M.P., 1988 MPLJ 745 , Shiva Nand Prasad vs. Chief of Army Staff, 1993 M.P. S.T 344, the Division Bench decision of this Court. 7. Having heard Learned Counsel for the parties, I am of the view that this petition deserves to be allowed. 7A. Undisputedly, according to the Gazetted Recruitment Rules of 1987, the petitioner had qualified 5 years of service as Assistant Ayurvedic Medical Officer. The petitioner was well within the zone of consideration as per Rule 14 of the Gazetted Recruitment Rules, 1987. The post of Assistant Ayurvedic Officer was required to be filled by promotion, the respondents were bound to adopt the criteria laid down under Rule 14 of the Gazetted Recruitment Rules of 1987. The promotion was to be accorded on the basis of seniority-cum-merit. It is no more in dispute that petitioner did qualify the qualifying length of service of 5 years. So far as merit is concerned, the stand of respondents is that since there were three 'Average' ACRs of petitioner, therefore, he was having lesser merit than the persons who were promoted. This fact cannot be marginalized and blinked away that the 'average' ACRs on the basis of which it was held by the members of the DPC that petitioner is not meritorious, were never communicated to him. Indeed, this is respondent's own case. In the return, it has been specifically stated that petitioner was having three 'Average' ACRs which were not communicated to him. Indeed, this is respondent's own case. In the return, it has been specifically stated that petitioner was having three 'Average' ACRs which were not communicated to him. If the 'Average' ACR is made a pivot not to promote an employee, according to me, the candidate should be well informed about it and opportunity ought to have been given to him to submit explanation because he may point out by submitting explanation/representation that the grading of 'Average' is not correct. Since this has not been done in the present case, according to me, the uncommunicated 'Average' ACRs cannot be made a pivot to assess that petitioner is less meritorious and on that count his case of promotion cannot be thrown out. In the case of M.P. Raja Sekhar (supra), the Apex Court held that when the employee is in dilemma while considering the ACRs an opportunity to correct the mistake ought to have been given to the employee. Apex Court while allowing the appeal expunged the adverse remarks. The Division Bench of this Court in the case of Jagat Narayan (supra) while dealing the verdict of Supreme Court in the case of Gurdial Singh Fijji vs. State of Punjab and others, AIR 1979 SC 1622 in para 6 has held as under : The entries were communicated only after this petition was filed in this Court. The representations were not decided even before the matter was taken up in the last meeting of the Screening Committee held in March, 1986. We also find that partly representation was accepted and part of the entry was expunged. In our opinion, all these factors vitiate the decisions taken by the Screening Committee (D.P.C.) in those three meetings held in July, 1983, February, 1985 and March, 1986 in assessing the merits of the petitioner's case and judging his suitability for promotion to the post of Chief Engineer. We are of the opinion that those adverse entries cannot even now be taken into consideration for the reason that they had lost all their efficacy as they remained uncommunicated for a period of three months and did not have the approval of the General Administration Department when they were communicated. The communication was inordinately delayed. The adverse entries, therefore, for the period 1980-81 to 1981-82 as also for the period 1979-80 should not be taken into account for assessing the petitioner's suitability for promotion. The communication was inordinately delayed. The adverse entries, therefore, for the period 1980-81 to 1981-82 as also for the period 1979-80 should not be taken into account for assessing the petitioner's suitability for promotion. In Gurdial Singh Fijji vs. The State of Punjab and others, AIR 1979 SC 1622 , it was held that "the principle is well-settled that in accordance with the rules of natural justice, an adverse report in a confidential roll cannot be acted upon to deny promotional opportunities unless it is communicated to the person concerned so that he has an opportunity to improve his work and conduct or to explain the circumstances leading to the report. Such an opportunity is not an empty formality, its object, particularly, being to enable the superior authorities to decide on a consideration of the explanation offered by the person concerned, whether the adverse report is justified. Unfortunately, for one reason or another, not arising out of any fault on the part of the appellant, though the adverse report was communicated to him, the Government has not been able to consider his explanation and decide whether the report was justified." This principle was further reiterated and approved in a subsequent decision by the Supreme Court in Brij Mohan Singh Chopra vs. State of Punjab, reported in AIR 1987 SC 948 . For the aforesaid reasons we are of the opinion that while assessing the petitioner's suitability for promotion in those three meetings held in July, 1983, February, 1985 and March, 1986, the adverse entries made against the petitioner for the years 1979-80, 1980-81 and 1981-82 could not have been taken into consideration. The subsequent communication of these entries after about 3 years is wholly inconsequential being against the notification issued by the State Govt, dated 29-11-1984 and, therefore, the petitioner's suitability has to be assessed after completely ignoring these adverse entries against him. In the present case those adverse ACR which were taken into consideration by the members of DPC for not promoting petitioner, should not have been relied. In the present case those adverse ACR which were taken into consideration by the members of DPC for not promoting petitioner, should not have been relied. In the case of Shiva Nand Prasad (supra), the another Division Bench of this Court, D. M. Dharmadhikari J. (as His Lordship then was) held that the entry which takes away the case of an officer out of consideration for promotion and renders him unfit such an entry must be treated as adverse necessitating its communication and opportunity of representation against the same. Admittedly, the average ACRs which were based, not to promote the petitioner, and on the basis of which it was held that petitioner was not meritorious, was not communicated to him nor any opportunity given to him to represent against the same and therefore those ACRs cannot be used against petitioner. 8. The decision of B. V. Sivaiah (supra) which has been placed reliance by Learned Counsel for the State is tangentially off the point. Learned Counsel for the State invited my attention to para 18 of the said decision and has submitted that by assessing minimum necessary merit, the competent authority can lay down minimum standard those required and may 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. It be seen that in the case of B. V. Sivaih (supra) there was an interview also, in the present case there was no interview, No doubt, the minimum standard can be fixed by the members of the DPC but the question is whether that minimum standard was in the knowledge of or was even communicated to petitioner to test his merit for the purpose of promotion. The answer is in negative. Since in the present case, uncommunicated Average ACRs of petitioner were never communicated to him, it cannot form as a base not to promote him. 9. For the reasons stated hereinabove, I am of the considered view that deceased Indra Kumar Pardhi has made out a case for consideration of his promotion from the date when his juniors were promoted. Since in the present case, uncommunicated Average ACRs of petitioner were never communicated to him, it cannot form as a base not to promote him. 9. For the reasons stated hereinabove, I am of the considered view that deceased Indra Kumar Pardhi has made out a case for consideration of his promotion from the date when his juniors were promoted. The respondents are directed to constitute a review DPC and consider the case of deceased petitioner in the light of this decision within a period of eight months from today. It is also made clear that after considering the case of deceased petitioner, if he is found fit for promotion/a notional order in that regard with all consequential benefits may be passed and the monetary benefit be paid to the widow Smt. Sushila Pardhi who has been brought in place of deceased petitioner on record. The respondents are further directed to re-fix the family pension and other pensionary benefits of Smt. Sushila Pardhi who is the widow of original petitioner Indra Kumar Pardhi. 10. This petition is allowed with costs. Counsel fee Rs. 1000/- , if pre-certified.