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Madhya Pradesh High Court · body

2005 DIGILAW 785 (MP)

Balram Prasad Shukla v. State of M. P.

2005-07-29

A.K.SHRIVASTAVA

body2005
ORDER 1. This petition was originally filed before the State Administrative Tribunal, Jabalpur on 12.2.1990, however, on account of abolition of the Tribunal, this petition has been received by this Court for its adjudication. 2. By this petition, the petitioner is seeking promotion to the post of Accountant w.e.f. 7.7.1981. 3. The case of the petitioner is that he was working as First Grade. Clerk. On 28.2.1980 vide order issued by the Regional Dy. Director of Tribal Welfare, Rewa, he was promoted on ad hoc basis as Accountant and posted in Block Development Office, Kotma on 28.2.1980. Thereafter by the order dated 7.7.1981 passed by the Regional Dy. Director of Tribal Welfares, Rewa he was reverted back to the post of First Grade Clerk while 20 others were confirmed. The said order has been placed on record as Annexure II. Against his order of reversion the petitioner submitted a representation and as per petitioner, it was informed to him by the Regional Dy. Director that the petitioner could not be considered by the DPC for promotion as his ACRs of March 1981, March 1982, March 1983 and March 1984 are not available to the DPC. 4. According to the petitioner, the Regional Dy. Director by its letter dated 16th January, 1986 asked the District Organiser, Tribal Welfare, Shahdol to send the ACRs so that the case of the petitioner may be placed before the DPC. In that regard Annexure III has been filed. The petitioner on 20.12.1989 submitted a representation to the Additional Commissioner, Tribal Welfare Authority, Rewa bringing all these facts in his notice that· though he was promoted on the post of Accountant on 28.2.1980 on ad hoc basis, but in the absence of his confidential report having been placed before the DPC, his ad hoc promotion was set aside and after repeated reminders and letters his ACRs were not placed before the DPC with the result the petitioner has been deprived of his promotion. The representation of petitioner is Annexure IV. Learned counsel for the petitioner submits that since in the gradation list of First Grade Clerk petitioner was placed at serial No.3, he has wrongly been denied for promotion. The representation of petitioner is Annexure IV. Learned counsel for the petitioner submits that since in the gradation list of First Grade Clerk petitioner was placed at serial No.3, he has wrongly been denied for promotion. It has been further submitted that vide order dated 29.11.1989 issued by Additional Commissioner, Tribal Welfare Authority, Rewa, 15 persons who were serving on the post of first grade clerk, were promoted as Accountant (Annexure VIII) and all these 15 persons are junior to the petitioner as a result of which again he submitted another representation on 1.12.1989. The petitioner again on 13.12.1989 submitted another representation to Commissioner, Tribal Welfare, Bhopal and prayed that his case be considered for promotion. The representation was also followed by· reminder (Annexure Xl). On the basis of these premised arguments, it has been contended by learned counsel for the petitioner that by allowing this petition the petitioner be directed to be promoted on the post of Accountant w.e.f. 7.7.1981. 5. Shri Samdarshi Tiwari, learned Oy.. Government Advocate, by inviting my attention to the averments made in the return has submitted that the action of DPC not finding the petitioner fit for promotion in the year 1981 is barred by limitation and cannot be challenged after near about nine years as the petition was filed on 12.2.1990 and thus, on this ground alone the petition deserves to be dismissed. On merit, it has been contended by learned by. Government Advocate that although the petitioner was promoted to the post of Accountant on ad hoc basis, but, it was purely subject to the condition of approval by the DPC. Since, the OPC held in the year 1981 did not approve the name of the petitioner for promotion, therefore, he was reverted back to his original post of first grade clerk vide order dated 7.7.1981. It has been canvassed by learned by. Government Advocate that the norms were laid down by the DPC and since the ACRs were not found up to the mark as per the norms laid down by the OPC held in the year 1981, therefore, the name of the petitioner was not approved for promotion to the post of Accountant. 20 persons who were found fit by the DPC in the cadre of first grade clerk, they were promoted. 20 persons who were found fit by the DPC in the cadre of first grade clerk, they were promoted. In the year 1989 though the petitioner was under the zone of consideration for promotion but he was not found fit by the DPC and, therefore, his name was not recommended by the DPC and 15 persons were promoted. It has been vehemently contended by learned Dy. Government Advocate that seniority alone is not the criteria for promotion to the post of Accountant but the promotion was required to be made on the basis of merit-cum-seniority. According to the norms fixed by the OPC a candidate should secure at-least three average points out of five years ACR as contained in memo dated 17.1.1981. The respondents submitted respective chart indicating the recommendation of DPC in regard to the petitioner as well as other candidates. The contention of learned Dy. Government Advocate is that since the petitioner was not found fit by the DPC, therefore, rightly he was not promoted to the post of Accountant and, therefore, this petition sans substance and the same be dismissed. 6. After having heard learned counsel for the parties, I am of the view that this petition deserves to be dismissed. 7. It be seen that the petitioner was promoted on the post of Accountant on ad hoc basis on 28.2.1980 but the promotion was subject to the approval of the DPC as it is clear on bare perusal of Annexure I dated 28.2.1980. Thus, the confirmation of the petitioner to the post of Accountant would be only after the approval of the OPC. The OPC was convened in the year 1981 and the petitioner was not found fit as a result of which vide order dated 7.7.1981 the department passed impugned order Annexure II reverting the petitioner to his original post of first grade clerk. It be seen that the promotion which took place on 7.7.1981 was never challenged by the petitioner for near about nine years and by this petition which was filed on 12.2.1990 the petitioner is seeking promotion w.e.f. 7.7.1981. In the case of P.S. Sadasivaswamy v. State. of Tamil Nadu [ AIR 1974 SC 2271 ] the apex Court upheld the decision of Madras High Court dismissing the writ petition of the petitioner on the ground of laches in regard to promotion which was sought after 14 years. In the case of P.S. Sadasivaswamy v. State. of Tamil Nadu [ AIR 1974 SC 2271 ] the apex Court upheld the decision of Madras High Court dismissing the writ petition of the petitioner on the ground of laches in regard to promotion which was sought after 14 years. In that case the Supreme Court held that if a person is aggrieved by an order of promotion, promoting a junior over his head he should approach the Court at least within six months or at the most a year of such promotion. The same view has been reiterated by the apex Court in a later decision in the case of A.J. Fernandis v. Divisional Manager, South Central Railway and others [ (2001) 1 SCC 240 ] in which the apex Court held that the promotion of another employee cannot be changed after a period of four long years. Since the petitioner in challenging the order of promotion after near about nine years, the view of this Court is that on the basis of the decision of P.S. Sadasivaswam and A.J. Fernandis (supra), the petitioner is not entitled for the relief. 8. Apart from the laches, on merit also the case of petitioner cannot be accepted. It be seen that the DPC convened in the year 1981, considered the ACRs of the petitioner and of other candidates w.e.f. 1974-75, 75-76, 76-77, 77-78, 78-79 and 79-80 the ACRs of petitioner were not found up to the mark. I have also given to my bestowed consideration to Annexure R/4 in that regard and I find that the persons who were recommended by the DPC for promotion were having better ACR in comparison to the petitioner and, therefore, rightly the petitioner was not promoted in the year 1981. 9. In the year 1989 again the DPC was convened and the ACRs of the petitioner for March 1984 to March 1988 were considered and the criteria which was fixed was that at-least there should be three average. On going through Annexure R/3, it is gathered that in the year 1984 the petitioner obtained "Gha", 1985 "Kha-4", 1986 "Ga-2", 1987 "Ga-2" and 1988 "Ga" and for this reason again he was not found fit for promotion to the post of Accountant by the DPC. On going through Annexure R/3, it is gathered that in the year 1984 the petitioner obtained "Gha", 1985 "Kha-4", 1986 "Ga-2", 1987 "Ga-2" and 1988 "Ga" and for this reason again he was not found fit for promotion to the post of Accountant by the DPC. The view of this Court is that since the ACRs of the petitioner were not upto the mark even in the year 1989, he was rightly not promoted to the post of Accountant. However, the respondents are hereby directed that in case the petitioner has now become eligible for promotion, his case may be considered in next DPC, if already not considered and promoted to the post of Accountant. 10. This petition is hereby dismissed with the aforesaid observations. No costs.